Questions Not Presented

Elsewhere on this site , Bruce Ackerman and Jennifer Nou scold the Supreme Court for deciding the Indiana voter-ID case with nary a mention of the 24th Amendment ‘s ban on “poll tax[es] or other tax[es]” that “deny or abridge” the right of citizens to vote in the federal elections. Invoking Harman v. Forssenius , a Warren Court case involving that amendment, Ackerman and Nou pull no punches:

We don’t suggest that the Roberts Court isn’t clever enough to find a way around Harman. Our point is that the justices didn’t even try. They ignored the 24th Amendment and restricted themselves to the equal-protection clause of the 14th in deciding the Indiana case.

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This sort of thing doesn’t happen every day in the life of the court—indeed, we can’t think of another case in which the justices utterly failed to address the most obviously relevant provision of the constitutional text. If they had squarely confronted the law and language of the 24th Amendment, there is a fair chance that Justices Stevens and Anthony Kennedy would have switched sides, creating a new majority for striking down the Indiana law.

Then, not content to criticize the court as a whole, the authors take direct aim at (go figure) Scalia and Thomas:

[The court’s] failure is especially curious in light of the Roberts Court’s increasing emphasis on the primacy of the written text in constitutional adjudication. If the 24th Amendment had been front and center, even conservative textualists like Antonin Scalia and Clarence Thomas would have been obliged to think again before ruling against voters’ rights.

In their race to criticize the court, Ackerman and Nou miss the point: The Supreme Court didn’t reach the 24th Amendment in the Indiana case because that issue was not brought before them by the parties to the case ! Unless I’m mistaken, the cert petitions didn’t raise the issue, and, consistent with those petitions, the court’s question presented limited itself to the First- and 14th-Amendment issues.

(Amazingly, Ackerman and Nou actually note that the lower court did not reach the 24th Amendment issue, yet they fail to consider whether the parties caused that omission below or before the high court.)

In short, Ackerman and Nou appear to forget that a Supreme Court case or controversy is not a free-ranging search for legal truths; rather, a Supreme Court case presents a specific issue or set of issues, raised by the actual parties to an actual legal dispute, to be resolved for the purposes of their litigation and for subsequent cases involving the same legal issue.  The point is not that (to quote Ackerman and Nou) that “the court failed to ask” a question—it’s that the parties failed to ask the question.