Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.
It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.
Looking back, O’Connor said, she isn’t sure the high court should have taken the case.
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
In talking to the editorial board of the Chicago Tribune, the retired justice added that the case “gave the court a less-than-perfect reputation.”
You don’t say.
O’Connor went on to say Florida election officials “hadn’t done a real good job there” — she seems to have quite an appreciation for understatements — but the high court “probably … added to the problem at the end of the day.”
Had the Supreme Court not intervened, the 2000 recount process in Florida almost certainly would have continued. If all the state’s ballots had been properly counted, then-Vice President Al Gore “would have won, by a very narrow margin,” according to an independent newspaper consortium that examined all of the ballots.
O’Connor, in other words, was one of five justices who directly dictated the outcome of a national presidential election, helping elect the candidate who came in second.
By: Steve Benen, The Maddow Blog, April 29, 2013
It is hard to overstate the importance of the Voting Rights Act of 1965. At the heart of the law that ended decades of disenfranchisement in former Confederate states is Section 5, the “preclearance” provision. Section 5 requires jurisdictions with a history of discrimination to get prior federal approval for any changes to state voting laws. The necessity of this provision was clear: without it, states had been able to nullify the commands of the 15th Amendment by passing measures that were formally race-neutral but were discriminatory in practice.
Regrettably, the Supreme Court appears poised to eliminate one of the proudest achievements of American democracy. As Esquire‘s Charles Pierce puts it, striking down Section 5 would constitute “the final victory of the long march against the achievements of the Civil Rights Movement that began almost before the ink dried on the bill in 1965.”
The most remarkable example of the contemporary Republican hostility to civil rights came, unsurprisingly, from Antonin Scalia. Ensuring equal access to the ballot, asserted Scalia, represents “a phenomenon that has been called the perpetuation of racial entitlement.” As it happens, Scalia’s argument has precedent … in the white supremacist arguments made by the Supreme Court in the 19th Century when it was dismantling Reconstruction. In the Civil Rights Cases, the majority opinion sniffed as it struck down the Civil Rights Act of 1875 that “there must be some stage in the progress of his elevation when [the freed slave] takes the rank of a mere citizen and ceases to be the special favorite of the laws.” As Justice Harlan noted in dissent, this line of argument was nonsense: “What the nation, through Congress, has sought to accomplish in reference to [African-Americans] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” Harlan was right then, and he’s even more obviously right now. Ensuring equal access to the ballot does not represent a “perpetuation of racial entitlement.” It simply provides the foundation for equal citizenship.
Scalia’s arguments about “racial entitlements” also represent an odd theory of democracy. The strong support for the VRA, Scalia argues, is just a product of the fact that “when a society enacts racial entitlements, it is very difficult to get out of them through the ordinary political process.” Note, first of all, the hostility evident in Scalia’s phrasing: he seems to take for granted that it’s an important goal to “get rid of” what he erroneously calls a “racial entitlement.” And leaving that aside, his argument perversely assumes the effectiveness of the bill and the political support it generated are reasons the Court should strike it down. This makes no sense. As Justice Breyer noted, it’s not irrational for legislators to want to continue to apply a remedy that has largely (but not fully) eradicated the disease of disenfranchisement. Nor is Scalia’s belief that politics compels legislators in every state to vote for the bill (a Republican would lose a Senate seat in Utah or Mississippi if he voted against it? Really?) particularly plausible.
Scalia has made similar arguments before. The last time the Supreme Court heard arguments about the VRA, Scalia argued that the 98-0 vote was irrelevant because “The Israeli supreme court … used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.” As is Scalia’s trademark, the argument is a superficially clever one that collapses on the slightest inspection. Most democratic jury systems—including the American one—are premised on the idea that a unanimous jury is more reliable one than a non-unanimous one, for the obvious reason that this is true. And while the unanimity of the Senate does not in and of itself ensure that the act is constitutional, it should certainly make the Court more reluctant to strike it down.
The rest of the points made by the conservative justices today made clear that not only are they likely to find Section 5 unconstitutional in this form, but in any possible form. They questioned whether a history of discrimination was sufficient reason to apply preclearance requirements to the nine states covered by Section 5. Could Congress avoid this problem by covering everyone? Apparently not. After the Solicitor General responded to Justice Kennedy’s question about whether the “preclearance device could be enacted to the entire United States” by saying that this would not be justified based on the current record, Kennedy responded “there is a federalism interest in making each state responsible” for enforcing voting rights.
Congress can’t win—given that Kennedy is the swing vote, whether the legislative body applies preclearance selectively or uniformly, its actions will likely be struck down by a Court that values “states’ rights” over fundamental human rights.
This is the wrong approach. The Fifteenth Amendment gives Congress broad discretion to enforce voting rights, and the Court should defer to to Congress barring much stronger arguments than are currently being advanced against the VRA. The relative success of the Act and the strong bipartisan support it enjoys are reasons to uphold it, not to strike it down. States remain capable of devising creative new ways to disenfrachise voters. And as Justice Scalia (perhaps inadvertently) let out of the bag, if the Court strikes it down it will not be because it is compelled to by the text of the Constitution, but because of conservative hostility to the idea of civil rights and a broad franchise.
By: Scott Lemieux, The American Prospect, February 27, 2013
“How John Roberts Sold The American People Out”: There Is No Public Benefit From The “Moneyed Interests”
Jeffrey Toobin’s New Yorker masterpiece “Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United Decision” is required reading for anyone concerned with one of the central problems plaguing the functioning of American democracy: the influence of corporate spending on the political process.
If you’re impatient, you can skip ahead to the last, chilling line: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.” And from there, you can make your own decision about whom to vote for this November, based on the direction that the Supreme Court is currently headed.
But a full reading of Toobin’s article is essential for understanding the larger context. The fight over whether and how to limit corporate spending on elections in the United States goes back more than a century. The battle lines are well-drawn, the sides well-established: “progressives (or liberals) vs. conservatives, Democrats vs. Republicans, regulators vs. libertarians.” The libertarian/Republican/moneyed interest side is currently in ascendence, but this is a long, long struggle, and the pendulum must one day swing back.
What’s so amazing, however, coming at this particular point in American history, right after Wall Street blew up the global economy, is the justification given by Justice Anthony Kennedy in his opinion announcing the decision.
“The censorship we now confront is vast in its reach,” Kennedy wrote. “The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.
The implications of this passage are breathtaking. In his rush to protect free speech, on the grounds that there is a public benefit in protecting the right of corporations to spend freely to advise voters “on which persons or entities are hostile to their interests,” Kennedy and four other justices ensured that “moneyed interests” would essentially be able to buy government support for an agenda defined by corporate priorities. How any intelligent person could believe that skewing political messaging toward the sector of American society with the most cash to spend could be in line what the founders of the United States would have believed prudent is simply mind-boggling. We’ll end up paying the price for this sellout for generations to come, but unlike Wall Street, we can’t afford it.
By: Andrew Leonard, Salon, May 21, 2012
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court’s conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court’s interpretation of the Constitution’s commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can’t toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. “You have built a fantasy mansion on the Commerce Clause,” the lawyer tells Smith. “You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called ‘inactivity,’ lock the door, and don’t let you in.” None of us have any way of knowing if this is what the justices are actually thinking, persuasive as it sounds. But there’s something going on among liberal commentators, both those who think the Court will strike down the ACA and those who think they might uphold it, to try to look through the oral arguments in the case and in recent decisions to determine, not necessarily the outcome of the decision, but the reasoning that might accompany it. This, I fear, is fruitless.
I’ll get to why in a second, but here are a couple of good examples just from yesterday. At TPM, Sahil Kapur looks at Justice Roberts’ concurrence in a recent case to suggest that he may be particularly sensitive to preserving the Court’s integrity and reputation, which could lead him to be reluctant to take such a partisan action as overturning the signature legislation of a president from the other party. Jonathan Bernstein, in a post not far from the position I’m taking, says, “The core problem here is that those who want a pre-New Deal reading of the Commerce Clause and the rest of the Constitution want to impose something that, in practical terms, would be highly unpopular, affecting laws such as the minimum wage. There’s really no easy way to do what conservative judicial activists want to do. And that leaves them with options that are going to look, to most people, very arbitrary.” But I really don’t think they care.
If the Court’s conservatives do strike down the ACA, the reasoning they’ll use to do so is irrelevant. That’s the whole point of having a Court like this one: it’s all about the outcome. Let’s recall the most revealing line in the Bush v. Gore decision: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, don’t even think about ever trying to use this case as precedent for anything, because we don’t even believe what we’re saying. And the Roberts Court is even more conservative and partisan than the Court that decided Bush v. Gore was. William Rehnquist was replaced by Roberts (not much difference there), and the centrist Sandra Day O’Connor was replaced by the hard-right Samuel Alito. They would be more than happy to hang their invalidation of the ACA on the novel “inactivity” justification, then never consider the rationale again. Imagine there was some future piece of conservative legislation passed by a Republican president and Congress that regulated “inactivity” in some similar way, and liberals sued to overturn it. Is there anyone of any ideology who actually believes the conservatives on this Court would say, “Well, we’ll have to be consistent about this”? Of course they wouldn’t. The outcome is the only thing that matters.
So it isn’t that they’ll build a room called “inactivity” down that dusty corridor and lock the door. It would be more accurate to say that they’ll grab the nearest unlabeled closet and cram the ACA inside, leaving no room for anything else before they shove the door closed and break off the key in the lock. Then they’ll never look at the closet again, unless it serves the purpose of striking down more progressive legislation.
By: Paul Waldman, The American Prospect, April 9, 2012
The Supreme Court spent the first part of the morning debating the “severability” question, and as Lyle Denniston reported, we learned a bit from the proceedings — most notably what the justices think of Congress.
The Supreme Court spent 91 minutes Wednesday operating on the assumption that it would strike down the key feature of the new health care law, but may have convinced itself in the end not to do that because of just how hard it would be to decide what to do after that.
A common reaction, across the bench, was that the Justices themselves did not want the onerous task of going through the remainder of the entire 2,700 pages of the law and deciding what to keep and what to throw out, and most seemed to think that should be left to Congress. They could not come together, however, on just what task they would send across the street for the lawmakers to perform. The net effect may well have shored up support for the individual insurance mandate itself.
Of particular interest was the justices’ opinions of Congress — it turns out, American voters aren’t the only ones who hold lawmakers in low regard — which was characterized as an institution incapable of creating a new health care law. Denniston added, “Scalia noted the problems in the filibuster-prone Senate. Kennedy wondered whether expecting Congress to perform was a reference to “the real Congress or the hypothetical Congress.”
I’d also note that Kagan complained at one point about “the complex parliamentary shenanigans that go on across the street.”
How dysfunctional is Congress? The legislative branch is now being openly and repeatedly mocked by Supreme Court justices during oral arguments — eliciting laughter from those in attendance.
Congress, they were laughing at you, not with you.
By: Steve Benen, The Maddow Blog, March 28, 2012