In their overview of today's papers, Slate Magazine notes a story in the Los Angeles Times analyzing a subtle shift in the standards the Supreme Court is using to decide cases:
"The LAT goes inside with a piece that takes a look at how the recent Supreme Court decisions about voter ID requirements and lethal injections illustrate "a subtle but profoundly important shift in how the justices decide constitutional questions." In the past, the court would regularly declare that certain laws were unconstitutional if they simply had the potential to violate someone's rights. Now, the justices want actual proof that rights have been violated."
This fits within the broader framework of standing, who in fact has the ability to bring a case forward to the court? How do we determine who has been impacted by a law? Proof that a right has been violated is a tighter standard than a potential to violate that right. This limits the role that the courts can play in the remediation of disputes, which has been a procedural goals of the conservative movement as I understand it.
From the LAT article comes speculation about how this shift might impact legal strategies:
After these setbacks, some advocates are rethinking their legal strategies.
Election law experts were quick to say it was a mistake to have rushed the voter ID case to the Supreme Court before there was any evidence of its actual effects.
Ohio State University law professor Daniel P. Tokaji said the Indiana ruling carried "an important lesson for voting rights lawyers who lose in lower courts: Think long and hard before seeking Supreme Court review," he wrote on an election law blog. "It's fair to point out that plaintiffs' lawyers put together a pretty weak case."
