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)

Tags: citizens united decision, doma decision, segregation, shelby county decision

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)

Tags: citizens united decision, doma decision, segregation, shelby county decision