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Voting Rights Challenge Ends With Whimper

(AP)
Over the generations, the Justices of the United States Supreme Court have conveniently created for themselves a self-serving rule—the "constitutional avoidance doctrine"—which gives them precedential justification (and perhaps political cover) for punting on fundamental questions they do not really want to address in any given case. In laymen's terms, the doctrine really ought to be called the: "Why Decide Today What You Could Put Off For Tomorrow, Next Year, or Next Decade?" doctrine.

On Monday, the Court voted 8-1 to punt in the most anticipated ruling of the current term. It failed or refused to determine whether a key provision of the Voting Rights Act is still constitutionally necessary to address and preclude diminishing discriminatory practices in the Old South. As a result of the ruling, the Act survives for the foreseeable future, the challenge to the Act (by a Texas district) is successful, and all sides in the complex case get to come away thinking it could have been worse and could have been better.

The most interesting component of the ruling was the dissent, by Justice Clarence Thomas, the only black Justice, who alone among his conservative colleagues was willing to scrap Section 5 of the Act as no longer necessary. "The extensive pattern of discrimination that led the Court to previously uphold Section 5… no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence."

The Court was less constrained Monday in deciding one of the biggest environmental cases of the term. Its ruling in Coeur Alaska v. Southwest Alaska Conservation Council means that millions of tons of "dirty" dirt from an Alaskan gold mine now will be released into the waters there. The Justices in a 6-3 vote sided with the Army Corps of Engineers, and against an expanded interpretation of the Clean Water Act, in declaring that the mining company had applied for and received the proper permits to leak the slurry into a lake.

The Justices also on Monday set the scene for what ought to be one of the more controversial cases next term. The Court has agreed to hear a case involving a federal law (currently deemed unenforceable) that would require certain sex offenders to be committed to "civil custody" even after they have successfully completed their prison sentences. If this scenario sounds familiar, it is. We are right in the middle of a similar debate over such indefinite detention for Guantanamo Bay terror suspects whom the Pentagon and White House believe cannot be successfully prosecuted.

We have about a week to go before the end of the current term and there are seven cases left undecided. We'll get a few more on Thursday, and then the final few probably next Monday, and then the Justices will all scatter to the winds.


(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

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