Thursday, June 27, 2013

Back to 1963 with the Roberts Court

Paul Campos writes that "four of the Roberts Five cast dissenting votes in the DOMA case that are completely impossible to reconcile with the legal principles they asserted in Shelby County." (This Supreme Court is a disgrace Salon 06/26/2013)

And wading through Scalia ranting dissent in the Windsor (DOMA) case, I was also struck by how wildly contradictory it seemed with his concurrence in the Shelby County case that gutted the Voting Right Act (VRA).

But Scalia's Windsor dissent after his concurrence in Shelby County is an example of the authoritarian's capability to hold wildly contradictory opinions and reasoning, in the former arguing for an absurd level of judicial restraint and in the latter practicing drastic judicial activism on the shakiest of Constitutional reasoning.

But it's also a reflection of the general conservative, segregationist, Federalist Society two-track approach to the judiciary. One the one hand, they argue furiously against liberal "judicial activism" and oppose to it a theoretical judicial restraint based on a so-called "originalist" interpretation of the Constitution. (I'm generalizing here; obviously there are a lot of nuances within the general ideological pattern.) On the other hand, they also make very active - and successful - efforts to get dogmatically conservative and Republican-partisan judges on the bench who in a case like Shelby County will rule on a crass partisan and simplistically ideological basis.

In the cases of Shelby County and Windsor, the former is far more urgent for the Republican Party because segregationist voter suppression has become a key Republican electoral strategy to counter demographic trends that seem to favor the Democrats, especially the rising percentage of Latino voters. I'll leave it to the experienced SCOTUS watchers to judge what Justice Kennedy's calculation may have been in voting with the majority on both.

Progressives and Democrats need to step up the pressure for restoring a sound sense of Constitutional interpretation and judicial responsibility to the federal bench, especially the Supreme Court. Because as has been the case more than once in the past, today's Supreme Court is becoming a very real threat to democracy and
Constitutional government:

  • Bush v. Gore marked the end of this Court's claim to high regard. It was our equivalent of the Kapp Putsch, the attempt by anti-democracy reactionaries to overthrow the German Weimar Republic in 1920. Only the Democrats weren't close to having the gumption to mount a general strike to stop it, which is how German workers successfully blocked the Kapp Putsch. Not that anyone even suggested such a reaction in 2000! The Republicans, on the other hand, were willing to stage a "bourgeois riot" and more to overturn the results of the election. (Wayne Barrett, The Five Worst Republican Outrages Village Voice 12/19/2000)
  • With Citizens United, the Roberts Court solidified its Roger Taney credentials. As President Obama said at the time, "I can't think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington, or more power to the special interests to tip the outcome of elections." Whether his actions on the issue since then have matched those words is another question. But he was dead right about it being a critical threat to democracy.
  • In a lesser known 2007 case, Parents Involved in Community Schools v. Seattle School District No. 1, the Court stood Brown v. Board of Education on its head. It blocked a voluntary school desegregation plan. Check out Clarence Thomas' concurring opinion on the Seattle case; he argues from the present segregationist-conservative dogma of "a color-blind interpretation of the Constitution" meaning that government cannot take into account race for the purposes of mitigating racial discrimination. He argues there that only if a school district is remedying previous de jure segregation explicitly imposed by law can a desegregation plan be allowed, which would effectively ban all school desegregation plans. Charlie Pierce says of Thomas' dissent in this week's Texas affirmative action ruling (Fischer v. University of Texas at Austin et al), "It's not often that you see anyone take this much utter self-loathing out for a walk without it ending up in gunplay or a dive off a bridge. ... If there's a sadder figure in American politics, I can't think of one offhand." (Justice Thomas Has A Few Things to Say Esquire Politics Blog 06/24/2013) And politics is really the right word there.

But isn't my argument a mirror-image reflection of the segregationist argument that Brown v. Board of Education and other civil rights cases those opposed racial discrimination were all violations of good jurisprudence and a deathly threat to Constitutional government?

Well, I guess it is: if you ignore actual history, sound traditions of Constitutional interpretation, the specifics of history, the realities of white racism, the utter cynicism of the Orville Faubuses and Ross Barnetts making those arguments, and reason in general.

Otherwise, it makes no sense to ignore the fact that any institution can be corrupted, including the court system. And when the the judiciary takes a bad direction and becomes an actual threat to democracy, supporters of democracy have to take account of that reality and take action to fix it. As Obama himself said of Citizens United, "I can't think of anything more devastating to the public interest."

It's important to remember also that one characteristic of the Scalia-Thomas brand of authoritarian Republican judicial activism also involves overturning well-establish precedent and making decision with major consequences with a very narrow majority based on very strained and highly ideological rationales, as in Bush v. Gore and Shelby County. The Court at least for its more recent history had tended to only reverse major precedents with solid majorities or unanimous decisions. Brown v. Board of Education was a unanimous decision. A major part of the reason for that is that a narrow decision that reverses precedent and that is going to have far-reaching effects is more likely to be credible if it has a large or unanimous majority than a 5-4 one.

But it's also important to look at the real existing practice of the Scalia-ist conservatives, which includes to shameless inconsistency, crassly partisan-political rulings, crude ideology and, not incidentally, often shabby ethical conduct. The Supreme Court is not subject to the ethical rules that apply to other federal judges and courts. Thomas and Scalia have both come under very justifiable criticism for their ethical practices as Justices. (Andy Kroll, Clarence Thomas' Wife Cashes In as Tea Party Lobbyist Mother Jones 02/04/2011; Kim Geiger, Clarence Thomas failed to report wife's income, watchdog says Los Angeles Times 01/22/2011; Bill Mears CNN 05/06/2004)

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