Friday, June 28, 2013

The Roberts Supreme Court had a big week, including the Segregation Five gutting the Voting Rights Act

The Roberts Court continued its "pro-business"/pro-One Percent, anti-labor, anti-consumer course in its term that just closed. And it gutted the Voting Rights Act (VRA) with an anti-democracy, pro-segregation decision in the Shelby County case. Striking down DOMA in the Windsor case was a bright spot for equal rights in the last week of this term.

High Court Closes Term With Blockbuster Week of Decisions PBS Newshour 06/28/2013:

Mark Shields Michael Gerson give their quality-TV, generally safe and unenlightening musings on the recent direction of the Roberts Court in Shields, Gerson on Implications of Supreme Court Decisions PBS Newshour 06/28/2013 (transcript here):

This is notable for the lights going out for a few seconds. But it was only a few seconds, so Sleepy Mark didn't nod off entirely.

But before the lights went on the blink, Mark rouses himself long enough to state some obvious things:

JEFFREY BROWN: But when you take a specific case like the voting rights case, do you see that as tinkering or was that a dramatic change?

MARK SHIELDS: I think it's a dramatic change. If you take an act of Congress, which is more than a constitutional act, as Marcia pointed out, 15,000 pages of testimony by a 98-0 vote in the United States Senate it's extended, by 390-33 in the House -- you can't get 390 House members to agree on a Mother's Day resolution.

They extended it.

And, you know, the court basically, led by the chief justice, said, no, this is not going to be -- this is not acceptable to us. And somehow this -- there is an otherworldly quality about judges. They seem indifferent to the fact that once they say money is speech that we're going to have $4 billion dollar campaigns.

They seem indifferent to the fact that once they say the Voting Rights Act is suspended that the attorney general of Texas, Mr. Greg Abbott, says oh, we're going to go -- our Texas voter I.D. law, which had been held up by the Justice Department, is now going to be imposed. Under the Texas voter I.D. law, a valid student identification from the University of Texas at Austin is not adequate to prove who you are, but a concealed weapons permit is perfectly OK.

I mean, you can pack heat going into a -- going into a beer garden is fine in order to vote. I mean, so we're going to see -- I don't know. This is what -- the direction I see it's going.

Federal Appeals Court Judge Richard Posner makes an interesting point in Supreme Court 2013: The Year in Review
Entry 16
Slate 06/27/2013:

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures — called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard — for the excellent reason that ... there is no such principle. ...

... Justice Ruth Bader Ginsburg's very impressive opinion (in part because of its even tone) ... marshals convincing evidence that the reasons Congress has for treating some states differently for purposes of the Voting Rights Act are not arbitrary, though they are less needful than they were in 1965, when the law was first enacted.

That evidence — the record before Congress — should have been the end of this case. For apart from the spurious principle of equal sovereignty, all that the majority had on which to base its decision was tenderness for "states' rights." One doubts that this actually is a primary value for any of the justices. ... It seems that the court’s regard is not for states' rights in some abstract sense but for particular policies that a majority of justices strongly favors.

The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. ... And the criticisms of the statute in the majority opinion are rather tepid. That's why the court’s invocation of "equal sovereignty" is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air. [my emphasis]
That concocted doctrine of "equal sovereignty" was a way to buy into the arguments that the pro-segregation opponents forefronted in 1965, that it was unfair because it singled out some states for greater scrutiny than others. But, as the copious documentation that Congress assembled then and in the reauthorizations of the act since have shown, there are certain areas of the country that merit special scrutiny of their voting laws because of well-entrenched and continuing patterns of discrimination. Most of those areas are in states of the old Confederacy. But Arizona and Alaska, not incidentally the states from which the 2008 Republican Presidential and Vice Presidential candidates came, were also covered by the preclearance provisions that Roberts and the rest of the Court's Segregation Five struck down.

His father Eric Posner makes this point: "Justice Thomas has integrity, but it’s the integrity of a madman. He is the Ron Paul of the Supreme Court." (Supreme Court 2013: The Year in Review, Entry 23 Slate 06/27/2013)

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