"Both sides" of the Voting Rights Act and racially-discriminatory voter suppression

"Within the affluent democracy, the affluent discussion prevails, and within the established framework, it is tolerant to a large extent. All points of view can be heard: the Communist and the Fascist, the Left and the Right, the white and the Negro, the crusaders for armament and for disarmament. Moreover, in endlessly dragging debates over the media, the stupid opinion is treated with the same respect as the intelligent one, the misinformed may talk as long as the informed, and propaganda rides along with education, truth with falsehood." - Herbert Marcus, "Repressive Tolerance" in Robert Paul Wolff, Barrington Moore, Jr. and Herbert Marcuse, A Critique of Pure Tolerance (1965; 1969)

To Arthur Schlesinger, Jr., that may have sounded reprehensible, suggesting as it did problems in the real existing political system of the US in 1965 that he preferred not to recognize.

But here is a contemporary illustration of the same process, in which the pro-democracy and anti-democracy position, the straightforward one and the tendentious one, the anti-racism and pro-racism ones, are presented in polite balance, in a segment in which "the misinformed may talk as long as the informed, and propaganda rides along with education, truth with falsehood." It includes Nina Perales from the pro-voting-rights Mexican American Legal Defense and Educational Fund (MALDEF) and James Burling from the hardline conservative Pacific Legal Foundation (PLF), the latter taking the position that, golly, we don't have to worry much about racial discrimination in voting any more, because "this country's commitment to civil rights, this country's commitment to voting rights is undiminished."

What the Voting Rights Act Ruling Means for Voters PBS Newshour 07/05/2013, which the PBS Newshour website

Bill Berkowitz discusses PLF's advocacy of anti-affirmative action positions in Pacific Legal Foundation on the wrong side of history Bend Weekly 02/07/2007. "Fighting to re-segregate America," he writes, is not the PLF's only goal. But it has clearly been one of them. While Berkowitz' column doesn't name the immediate cases he's discussing, one of them appears to be the one that produced the decision, Parents Involved in Community Schools v. Seattle School District No. 1 (2007) in which the Roberts Court stood Brown v. Board of Education on its head by blocking a voluntary school desegregation plan. PLF took the pro-segregation side, of course.

Also on PLF's history, see Source Watch's entry, Pacific Legal Foundation (accessed 07/07/2013).

And if you want to see an example of "the stupid opinion is treated with the same respect as the intelligent one," check this one of David "Bobo" Brooks and the sad, allegedly liberal, Ruth Marcus discussing the same issue, in this case Bobo representing "the intelligent one", although giving a clean-shaven segregationist view along the lines of: oh, gee, they probably shouldn't have gutted the Voting Rights Act, but I can't see what advantage my nice Republican friends trying to discriminate, and if they did, it will backfire on them, so how could this wind up with anyone discriminating against them? Okay, "weasely" would be a better discription, but in contrast to Marcus, it represents "the intelligent one." Marcus meets Bobo's double-reverse segregationist statement with these the first words out of her mouth:

Oh, well, I so totally agree with David.

I think maybe I should just say, OK, agreed, let's move on, and we can find something to disagree about.

Watch Shields and Marcus on Voting Rights Ruling and Egypt on PBS. See more from PBS NewsHour.

Yes, it is possible to here a high-brow discussion on PBS quality-TV and come out of it less informed than before you heard it! Tags: herbert marcuse, repressive tolerance, right to vote, segregation, shelby county decision, white racism

The right to vote and the Constitution

Supreme Court Takes Huge Blow to Minority Voter Rights The Young Turks 06/25/2013:

Since the Supreme Court's Segregation Five gutted the Voting Rights Act (VRA) in the Shelby County case two weeks ago, I've seen several references to the idea that the right to vote isn't guaranteed by the US Constitution.

One was this piece from March by Rich Lewis, Americans Have No Constitutional 'Right' to Vote Christian Post 03/04/2013.

This doesn't count? The part where it says "the right to vote" as clear as day? AMENDMENT XIV

Or this, in the 19th Amendment where we have it this way? "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex"?

Or this, AMENDMENT XXVI, "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age."

Or this, that's in the original text? "The United States shall guarantee to every State in this Union a Republican Form of Government ..." It doesn't say "right to vote" there. But in 1789 the entire concept of "republican form of government" included the assumption of the right of at least some people to vote. In the debates of the time, the two major alternative forms of government in contention were monarchy vs. republic.

The Constitution doesn't guarantee some absolute right to vote, or a right to vote for every federal officer. But whoever said that it did? The three Amendments I just cited were intended to eliminate certain conditions as a ground for the denial of the right to vote. The 14th Amendment even specifies that rights and privileges of citizenship can be curtailed as punishment for someone duly convicted of a crime: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

And it is a real problem, and a very significant issue in voter suppression, that a large number of black men in particular are deprived by state laws of the right to vote for years or even a lifetime because of a criminal conviction, even years after they have served any prison time or paid any fines that was part of the sentence.

But that's a very different thing than saying there is no right to vote in the Constitution.

Jonathan Soros and Mark Schmitt also write on the issu in The Missing Right: A Constitutional Right to Vote Democracy Journal 28 (Spring 2013):

Amendments to the Constitution have required "equal protection," eliminated the poll tax, and made it unconstitutional to restrict voting based on race, sex, and age for those over 18. For years the Supreme Court relied on these amendments to expand the franchise, and the broadening of voting rights, which was associated with the civil-rights movement, was widely accepted as a marker of progress toward a just society until about 2000. More recently, in an environment of increasingly rigid partisan loyalties, controlling who votes offers more leverage than persuading voters to change their minds, and thus access to the ballot itself has become an arena of intense political conflict. These conflicts constitute what the election scholar Richard Hasen calls "the voting wars." Most of these wars end up in the courts, where the rules of engagement—defined by our Constitution—do not sufficiently protect voters’ rights to exercise their franchise. In the absence of an explicit right to vote, the Court has found no issue with a variety of regulations that unnecessarily interfere with voting.

I'm very much in favor of a democratic pushback against voter suppression and unnecessary restricts on the vote. In fact, it's a critical issue for American democracy. It should be a critical concern of both parties. But in fact the segregationists have captured the Republican Party, about as completely as such captures happen in American politics. In today's real existing United States, the democratic obligation to protect the right to vote is also a Democratic Party partisan concern.

But their formulation of it is something I'm not comfortable with, at least not yet:

Finally enshrining the right to vote in the Constitution would help resolve most of these cases in favor of voters. It would not make every limitation unconstitutional ... but it would ensure that these limitations are judged under the standard known as "strict scrutiny," meaning that governments would have to show that the restrictions were carefully designed to address a compelling interest of the state.

Because the massive voter suppression under the post-Reconstruction, Segregation 1.0 system in the Deep South was based on devices to avoid recognizing in reality rights already guaranteed in the Constitution.

And I worry that the defenders of Segregation 2.0 might try some mischief around this issue. Such as writing "concern troll" columns - which would probably sound a lot like the Rich Lewis one linked above - rhetorically advocating a Constitutional Amendment to secure the "right to vote" as a way of promoting the notion that there currently is no real Constitutional right to vote.

David Lawrence, editor at the conservative-leaning U.S. News and World Report professed just such a concern-troll interest for the 14th Amendment in his opposition to school integration, as Alex Kingsbury reports in David Lawrence: A Profile US News 05/16/2008:

When President Dwight Eisenhower directed federal troops to enforce the court-ordered integration of Little Rock Central High School in 1957, Lawrence wrote in a stinging U.S. News editorial: "It is not too late to return to the normal processes of law enforcement in America and to rely on the good sense of a community whose feelings have understandably been aggravated by an unlawful use of federal troops."

His views on the primacy of the Constitution, however, did not extend to the whole document. Lawrence wrote frequently that the 14th Amendment, which guarantees equal protection under the law and provided the basis for civil rights legislation, was not legally ratified and was therefore "null and void." "God created men of different colors, just as he created birds of different colors. We know the old saying of 'birds of a feather flock together.'" Desegregation, he wrote in a letter to segregationist Charles Bloch, "would not be possible if the Constitution as written was upheld."

Kingsbury didn't bother to mention that Lawrence's argument was bunk and the Supreme Court had recognized the validity of the 14th Amendment almost too many time to account.

Segregationist sentiment has become steadily more respectable among Republicans. In the 2008 piece, Kingsbury took on face value Lawrence's argument that his support of segregation hand nothing all to do with race, no sirree, nothing at all:

Likewise, it was adherence to process—apparently more than overt racism—that fed Lawrence's fierce opposition to public school integration. The Constitution "teaches respect for the minority, and so long as the minority among us conforms to the process of the Constitution, we should confine our efforts to outarguing them and outvoting them rather than suppression," he told an audience in 1920.

Yes, of course it was "adherence to process," and nothing at all to do with race, Lordy me, not anything to do with race at all.

This is also the kind of cutesy doubletalk of which we can expect to hear a lot more from segregationists in years to come. Kingsbury: "Yet near the end of his life, Lawrence came to see integration as inevitable and repeatedly called for patience and calm on both sides, as 'members of all races have an equal obligation to maintain peace inside America.'" Accepting integration as "inevitable" was the slogan for the defeated but unreconciled on the issue.

The Supreme Court's Segregation Five have resurrected that cause from its official demise.

Since comma-dancing over definitions has always been part of segregationist culture in the US, it can't be long before we have Republicans throwing public hissy-fits over use of the term "segregation" to describe their program. For stodgy definitions, I usually check the Encyclopædia Britannica, in this case their definition of "segregation, racial." Encyclopædia Britannica Ultimate Reference Suite (2012) Their definition both spells out the straightforward meaning of segregation as physical separation and the intimate connection of segregation with voter discretion in the American segregation system the Republican Party is attempting to reinstate in a 21st century form:

the practice of restricting people to certain circumscribed areas of residence or to separate institutions (e.g., schools, churches) and facilities (parks, playgrounds, restaurants, restrooms) on the basis of race or alleged race. Racial segregation provides a means of maintaining the economic advantages and superior social status of the politically dominant group, and in recent times it has been employed primarily by white populations to maintain their ascendancy over other groups by means of legal and social colour bars. ...

Racial segregation has appeared in all parts of the world where there are multiracial communities, except where racial amalgamation has occurred on a large scale, as in Hawaii and Brazil. In such countries there has been occasional social discrimination but not legal segregation. In the Southern states of the United States, on the other hand, legal segregation in public facilities was current from the late 19th century into the 1950s. (See Jim Crow law.) The civil rights movement was initiated by Southern blacks in the 1950s and '60s to break the prevailing pattern of racial segregation. This movement spurred the passage of the Civil Rights Act of 1964, which contained strong provisions against discrimination and segregation in voting, education, and the use of public facilities. [my emphasis]

What we think of now as the "heroic" period of the civil rights movement beginning with the Montgomery Bus Boycott of 1955-6 focused on a wide variety of issues, such as access to desegregated education and public facilities, equal treatment in the courts, anti-lynching, and employment opportunities. But securing voting rights for African-American citizens as, yes, a practical recognition of a basic democratic right, was central to the fight. Because denial of the vote to black citizens was also the political core of the segregation system, even narrowly defined as physical separation in public facilities.

In political terms, it's entirely legitimate to speak of the voter-suppression laws as segregationist measures. If we want to refer specifically to laws requiring physical racial separation, "Jim Crow" or "Jim Crow law(s)" is a well-understood term for that.

Soros and Schmitt provide a good summary of the various kinds of voter-suppression techniques the Republican are currently using, like: unnecessarily early registration requirements; photo ID laws, which create a lot of latitude for mischief as well as an unnecessary impediment to voting in themselves; voting on Tuesdays (which would require a Constitutional Amendment to completely eliminate); and, felon disenfranchisement laws.

They advocate a Right To Vote Amendment as a way to give more unity and focus and hopefully more effectiveness to the current right-to-vote efforts. They look to the unsuccessful campaign for the Equal Rights Amendment (ERA) as an example of who even a fight that fails of its goal can have major positive effects:

A good example of an amendment campaign that built a movement is the Equal Rights Amendment (ERA), which fell short of being ratified in the late 1970s, but gave the emerging women’s movement a clear goal, provided it with a guiding mission, and prompted a significant national conversation about equality and the rights of all people. Through state and federal laws, the creation of state commissions on the status of women, and, above all, cultural changes in the family, schools, and corporate America, women have achieved many of the original goals of the ERA.

It's a good point. But, as they also note, some voting-right advocates "believe that acknowledging this constitutional deficiency is confusing and weakens their reliance on an implicit 'right to vote' in legal or public advocacy." That's exactly where my concerns fall.

Supreme Court Jutice Antonin Scalia expresses his own segregationist view on laws enforcing voting rights, as reported in Scalia: 'Racial Entitlement' in Voting Rights Act 02/27/2013 The Young Turks, which also gives some historical background on the VRA:

Tags: right to vote, segregation, shelby county decision, white racism

Picking on those persecuted segregationist white folks in the South

As I mentioned in my previous post, Mississippi has one of the new segregationist voter-suppression laws in place. (Voting Rights Act ruling clears path for Mississippi voter ID use in 2014 AP 06/25/2013.

The Republican voter-suppression efforts are nationwide and have been notably present in swing states like Ohio and Pennsylvania. But most of the states that were covered in whole or part by the now-nullified preclearance provisions of the Voting Rights Act (VRA) were states of the former Confederacy, the two big exceptions being Alaska and Arizona.

Ed Kilgore isn't sympathetic to the argument we're hearing from today's segregationists in the preclearance states that it was terribly unfair to be singling them out for special federal review of their voting laws ("Getting Over" Jim Crow Political Animal 07/02/2013) since 1965:

Is 49 years ago ancient history? Well, I haven't headed off to the nursing home just yet, and I can certainly remember Jim Crow quite vividly. And I have a feeling that the millions of southern African-Americans still alive today who can remember experiencing Jim Crow from the less advantageous side of the racial barrier don’t consider it ancient history either.

What makes this “oh, get over it” attitude especially maddening is that the extraordinary effort that culminated in the enactment of the Civil Rights Act (and then the Voting Rights Act the next year) was necessitated by the refusal of the South to accept defeat in a war a century earlier and its successful resistance to the Civil Rights Amendments enacted to ensure the region didn't just revert to its antebellum racial practices. The entire history of race relations in the South has been a story of racists taking the long view and outlasting the wandering attention span of those demanding change—who out of fatigue or competing priorities or their own prejudices "got over it" and left the South to its own devices. [my emphasis]

When it comes to trends in white supremacy, Pat Buchanan is a reliable bellwether (A Reconstructed South Under Fire The American Conservative 06/28/2013). And he sees last week's ruling by the Roberts Court Segregation Five in Shelby County that guts the VRA:

What Congress can no longer do is impose conditions on Southern states from which Northern states are exempt. Washington can no longer treat the states unequally — for that, too, is a violation of the Constitution.

The Roberts court just took a giant stride to restoring the Union.

This was the main segregationist talking point against the VRA when it the first version was enacted in 1965. They argued it was unfair and unconstitutional to apply it only to Southern states that had demonstrated blatant and egregious racial discrimination against African-American voters. The Segregation Five of the Roberts Court validated that position last week. Pat Buchanan recognizes this and is thrilled to see it.

Bill Denny, Republican State House of Representatives Elections Committee Chairman in Mississippi, is singing from the same hymnal (Miss. leaders react to Voting Rights Act decision Jackson Clarion-Ledger 06/25/2013):

If Mississippi and a few other states have to get federal clearance for election changes, all states should have to do so, said state House Elections Committee Chairman Bill Denny, R-Jackson.

"I've always felt that it was unconstitutional," Denny said in a phone interview Tuesday. "I would've agreed in 1965 that something had to be done, but it should've been done to all 50 states. I just always felt that was wrong, that was a violation of the 10th Amendment to begin with, of states' rights." [my emphasis]

At his official website, Rep. Denny brags that he is "affiliated with the American Legislative Exchange Council" (ALEC), the Koch Brothers-supported group that promotes reactionary legislation at the state level. Denny turns 84 next month, so he's would have been 35 when the VRA was first passed, old enough to be well acquainted with the pre-VRA segregation system. And, just like as every other sentient adult in Mississippi, he knows what "states rights" meant then and now as a political slogan.

This is another version of this viewpoint from a Mike Walker, in a letter to the editor from Brandon MS (Voting Rights Jackson Clarion-Ledger 06/25/2013):

As long as blacks can vote as many times as they want to for their chosen candidate, everything is right with the world. As long as dead voters rise every four years to cast their vote for the Democrat Party, voting in our state is equal & fair. At least that is what the Mississippi Black Legislative Caucus believes.

The Voting Rights Act was, at best, unconstitutional, because it was written to specifically target 9 states, not the entire country. It needed to be wiped from the slate 50 years ago.

That same time-(dis)honored segregationist position is taken by Marty Duren in Religious Liberty as Idolatry? Christian Post 06/28/2013:

Just how restrictive was section 4 of the Voting Rights Act? Georgia Rep. Jack Kingston said, "If you move a polling place from the Baptist church to the Methodist church, you've got to go through the Justice Department." Since other states have no such requirements the court saw this an unfair to the states, counties and townships that did.

Most, if not all, of the states involved have elected minority officials and representatives, including the national level. Responses to the court's decision ranged from the ridiculous to the sublime.

Since Duren is part of the segregation chorus here - pretty much the rest of his piece is about the horrors of same-sec marriage - I'm assuming he takes responses like those of Pat Buchanan and Ole Bill Denny to be the "sublime ones."

Tags: segregation, shelby county decision, voter suppression

Segregation watch

Some of the liberal commentary on the Roberts Court Segregation Five decision last week in the Shelby County case gutting the Voting Rights Act (VRA) Bob Kuttner in Why Voter Suppression Will Backfire Huffington Post 06/30/2013 gives reasons for optimism. And there are reasons for optimism. Latino voting rates in California went up significantly after Republican Gov. Pete Wilson's anti-immigrant initiative that year, and have remained high. That was a real backlash against a law and a campaign that had clear racial and xenophobia elements. High African-American turnout in 2012 in the face of widespread segregationist voter suppression efforts is also a reason for optimism.

Fortunately, Kuttner is not being superficially optimistic: "we will need to fight the civil rights revolution of the 1960s all over again, on the ground. In the long run, we have demographics on our side. A ton of damage, however, can be done in the short run, and this will take mobilization of a movement to fight for the right to vote and to have every vote count."

Voter suppression does its largest damage over time. Will black and Latino voters be willing to stand in line for hours to vote, sometimes in the cold and rain, in an non-Presidential election year like 2014? And again in 2016, and 2018, and in the various primary and mid-year and off-year elections that take place in between?

Mississippi has one of the new segregationist voter-suppression laws in place, as the AP reports in Voting Rights Act ruling clears path for Mississippi voter ID use in 2014 06/25/2013. Mississippi's Secretary of State Delbert Hosemann - the state secretaries of state manage elections - just after the Segregation Five made their decision happily declared that racial discrimination in voting is now unthinkable in Mississippi: "Mississippi citizens have earned the right to determine our voting processes. Our relationships and trust in each other have matured. This chapter is closed." (Statement on Supreme Court Voting Rights Act Opinion 06/25/2013)

Growing up in what a completely segregated Mississippi in the year I was born, I always try to keep in mind what statements like this mean in SegSpeak. In this case the translation to plain English would be: " White folks in Mississippi have earned the right to go back to gittin' the coloreds off the votin' rolls. Our relationships and trust in each other have matured so that these here blacks are ready to learn what thar real place is ag'in. This chapter of having to practice the American form of government is closed and we can start gettin' us a proper White Man's gubment ag'in."

In-person voter fraud is a minimal, virtually non-existent problem, though that's what's used to justify the Voter ID laws. Urban voters with no driver's license are particularly likely to be affected by Mississippi's Voter ID segregation law. If you don't have a photo ID, ole Delbert says he's settin' up photo machines at the county registrars' offices. But it still means you have to take the time to get the ID.

Even with no hanky-panky by the county registrars or local election officials, this is likely to suppress African-American voting. If you leave your ID at home one election day because you haven't needed it for the last 30 years, you don't get to vote and you may not have time to go get it and come back to the poll.

Add in the tactical voter suppression tricks and it gives the segregationists some extra tools. "This picher don't look like you, boy. We cain't accept this." (Aside to his fellow poll workers when the black voter is turned away: "They all look alike anyhow, hyuck, hyuck!")

Change the polling place at the last minute. Restrict the hours to create long lines. "Darn, our Voter ID camera hyere at the registrar's office broke down just after we took the picher of that white feller who was here just before you. You'll have to come back later." "What, election's tomorrow and you ain't got yore voter ID yet? Well, hope it comes in the mail tomorrow so you can vote."

In other words, even honestly administered - and honestly administering segregation voter-suppression laws is just not part of the program - the voter ID creates an extra impediment to blacks voting in Mississippi. And that's its main purpose, though excluding Latinos and some poor whites is part of the package. Though even then, it's a safe bet that fewer whites will have their voter IDs questioned at the polls. And after one or two or three hastles around the ID in voting, lots of the voters affected with be discouraged from voting. Toss in a few "public service" commercials from ole Delbert's office the week before the election warning of the dire consequences of showing up at the voting places with an improper ID, ... Well, you get the picture. And so does ole Delbert and everyone else in Mississippi, though legal niceties and segregationist neuroses require segregationist whites to pretend otherwise.

As a general thing to keep in mind with these segregationist voter-suppression laws, a large part of the actual discrimination with take place at the local level: at the polling places, in the county registrar's offices. And when local shenanigans suppress the black vote and fewer black candidates get elected, that starts to restrict the pool of experienced African-American talent seeking state and federal offices. Ole Delbert isn't going to be putting out any press releases saying that as of such-and-such a date, only white people in Mississippi can vote. That wasn't how it worked in 1953, it's not how it will work in 2013 and afterward.

From the Southern Coalition for Social Justice: Community Organizing Is Even More Critical After the Supreme Court’s Decision in Shelby (n/d, accessing 07/01/2013)

Tags: segregation, shelby county decision, voter suppression

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