By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, September 18, 2012
“Vulnerability Of The Vote”: Insurance Against Racial Suppression Should Not Be On A Backwards Slide
An odd scene unfolded in Washington on Wednesday: as the president and leaders of Congress were dedicating a statue to Rosa Parks, the lifelong activist whose defiance on a Montgomery, Alabama, bus helped spark the Civil Rights Movement, across the street the Supreme Court heard oral arguments on one of the signature piece of civil rights legislation, the Voting Rights Act.
Specifically, the court heard the case of Shelby County v. Holder, in which that Alabama county seeks to overturn Section 5 of the Voting Rights Act, which was passed in 1965. That section requires states — and some municipalities — to get pre-clearance from the Justice Department or the District of Columbia federal court before making any changes to voting laws.
The fundamental question is whether states that have a history of voter suppression should forever have to live with the legacy of that past.
The problem with the law, in my mind, is that it should be expanded rather than struck down.
The Brennan Center for Justice at New York University maintains that “Section 5 is an essential and proven tool.” According to the center:
“Although progress has been made since the Voting Rights Act passed in 1965, voting discrimination still persists. Between 1982 and 2006 (when Congress overwhelmingly renewed the law), the Voting Rights Act blocked more than 1,000 proposed discriminatory voting changes. Without Section 5’s protection, these changes would have gone into effect and harmed minority voters.”
The center calls the passage of the Voting Rights Act “a reflection of the promise of our Constitution that all Americans would truly have the right to vote without facing discrimination, poll taxes, and other abuses,” and I wholeheartedly agree with that point of view.
The problem that the law may run into is that it’s too narrow.
In a 2009 ruling questioning the constitutionality of Section 5, Chief Justice John G. Roberts Jr. wrote:
“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by Section 5 than it is nationwide.”
If the Voting Rights Act covered all states and not just some, Justice Roberts’s argument would be null. In fact, there is growing evidence that such a national requirement would be prudent. Many of the states that sought to install voter suppression laws leading up to last year’s election were in fact not covered by Section 5.
Roberts hammered this point home Wednesday during oral arguments, asking, “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?”
Seven of the nine states covered by Section 5 are in the south (Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia). The other two states are Arizona and Alaska. Some counties and townships are covered in other states.
The Southern states that Section 5 applies to span the Black Belt of the south, a region with the most glaring electoral abuses in the 1960s.
A November Pew Research Center report points out the obvious: blacks were the largest minority group in 1960, but that is no longer the case.
According to the report, blacks were 11 percent of the population, while Hispanics were 3.5 percent and Asians were .6 percent. Since then, the demographics of the country have changed dramatically. According to Pew, in 2011 blacks were 12 percent of the population, while Hispanics were 17 percent and Asians were 5 percent. And the numbers are projected to change even more. By 2050 Pew estimates that blacks will be only 13 percent of the population, while Hispanics will be 29 percent and Asians 9 percent.
To boot, Hispanics and Asians geographically dispersed differently than blacks.
We not only need to keep Section 5 in place, we also need to consider expanding it so that every voter has fair and equal access to the ballot. There are hurdles to achieving this goal, of course. The court might also find that it’s unconstitutional to broaden that section of the law, deeming it too onerous and an infringement on states’ rights — particularly those states that don’t have a demonstrable, endemic, systematic history of discrimination.
Still, it’s worth some thought.
During oral arguments, Justice Antonin Scalia went so far as to call Section 5 the “perpetuation of racial entitlement.” (That guy…) It’s not a racial entitlement, sir, but insurance against racial suppression.
In the president’s remarks at the statue dedication, he rightfully hedged his words. Instead of saying that because of people like Parks our children grow up in a land that is free and fair and true to its founding creed, he said that because of them it is “more free and more fair; a land truer to its founding creed.” (Emphasis mine.)
We’ve come a long way, but we’re not there yet, and the last thing we want or need now is to slide backward.
By: Charles M. Blow, Op-Ed Columnist, The New York Times, February 27, 2013
Just a few elections ago, I remember people wore button that said, “It’s the Supreme Court, stupid.” But during this fall election season, the future of the Supreme Court has received very little mainstream attention, even though decisions by that august body have an impact that can last far longer than the term of a member of the House or Senate and certainly longer than that of any single president. On the current court, four justices are 74 years old or older — two from each side of the ideological divide, and it is quite likely the next president will pick at least one new one.
What hangs in the balance? Many issues but of particular note is: Roe v. Wade. It need not be completely overturned for abortion to become out of reach for the vast majority of American women, or to undermine their autonomy in making this most personal decision. In fact 87 percent of all U.S. counties — counties in which 35 percent of all women in the US now live — already lack an abortion provider. Efforts to make abortion even more inaccessible continue apace, with many states passing huge increases in anti-abortion regulations after the election of 2010. The fate of those laws with this Supreme Court remains to be seen, but should any of them reach the court, a majority may well seize the opportunity to strike down Roe in its entirely or eviscerate it beyond recognition.
Years of progress on keeping the principle of separation of religion and state alive and well is also endangered. Despite a track record in the law that upholds government enforcement of anti-discrimination laws regardless of religious belief — for example, you can’t refuse to serve an African-American a cup of coffee based on a biblical belief of inferiority — the current court may give employers the right to cite their religious beliefs as a justification for discriminating against women by denying them insurance coverage for contraceptives, even when the employer isn’t paying for it.
Other reforms of the mid-20th century are also at stake. Laws that finally made it illegal to discriminate on the basis of race, religion, gender, and national origin are under attack. The basic principles may remain, but the ability to enforce them has repeatedly been weakened by the Supreme Court, most recently in the Lilly Ledbetter case when the court rendered an unreasonably narrow interpretation of the federal law against job discrimination. The long Supreme Court campaign against affirmative action could produce another setback by spring in Fisher v. Texas case heard October 10, if efforts to achieve diversity in higher education are overturned.
Voting rights protections, the bedrock of the 1960s civil rights revolution, are being unraveled in many states, and appeals to the Supreme Court are certain to happen in the next session. The new state laws undermine the idea that government should make voting as easy as is reasonably possible. The Supreme Court’s faulty 2008 decision in Crawford v. Marion County Election Board, an Indiana case upholding photo ID requirement without any inquiry into their chilling effect, has reaped a whirlwind of efforts to disfranchise millions.
The Supreme Court’s willingness to reverse long-standing precedent in the service of an ideological agenda is epitomized by its decision in Citizens United where the court went out of its way to rule that corporations have the same free speech rights as living people. That ruling overturned a principle of 70 years’ standing and unleashed a flood of money into the election process that eclipses the Watergate era and has seriously altered the political landscape of this election.
A look back at the last decade is not encouraging to those who believe as I do that our courts should dispense justice in keeping with the progress we have made in upholding individual rights, ending discrimination, and adhering to our founding principles of liberty and justice for all. Often we can’t quite put our finger on the correlation between a judge’s background and life experiences and the rulings rendered by the courts on which he or she presides. But it is surely there. It is widely conceded that a majority of those who sat on the Supreme Court before the Civil War were in fact slaveholders. It’s pretty hard to imagine that their decisions weren’t influenced by that fact. The first black justice, Thurgood Marshall, did not serve until 1967; the first woman, Sandra Day O’Connor, not until 1981. Their life experiences, for centuries excluded from our judicial system, were certainly linked to their legal decision-making.
Today with the court polarized, every presidential nomination to the Supreme Court matters. Each can help further the progress our country has made in achieving equality and justice, or transport us back to a time when the courts ignored the rights of women and African Americans, of religious and ethnic minorities, of criminal defendants and others to equal treatment and due process. As voters, we bear the ultimate responsibility for making sure we know what kind of justice the candidates for president would likely appoint.
By: Nancy K. Kaufman, CEO, National Council of Jewish Women: Published in The Blog,The Huffington Post, October 25, 2012
While the election is dominated by talk of the economy and Mitt Romney’s latest foreign policy blunder, don’t lose sight of one important fact: Perhaps nothing will have a bigger impact on the United States’ future than the Supreme Court. And with four justices above the age of 70, the next president of the United States could have enormous power to shape the court for generations to come. Age is not, as Playboy mogul Hugh Hefner has suggested, just a number.
In a government paralyzed by partisan gridlock on the most important matters of the day, the Supreme Court has become what Bill Moyers calls “The Decider.” A majority of the justices has taken a far right turn in its decisions.
This extremism has a history. In 1971, Lewis Powell, then a corporate lawyer and soon to be a Supreme Court justice, wrote a memo at the request of the U.S. Chamber of Commerce, urging it to push for an activist, pro-business court that would rubber-stamp its agenda. Powell’s memo laid the groundwork for a right-wing rise in all areas of public life, including law firms, think tanks, campus organizations and media outlets. The 1987 failed Supreme Court nomination of right-wing ideologue Robert Bork was, in hindsight, only a setback in the movement to push the court toward the right. Extremists including Clarence Thomas and Samuel Alito would eventually be confirmed.
For much of the past 40 years, even as the court has contributed to growing inequality and the enrichment of the 1 percent at the expense of the 99 percent, public opinion has largely and consistently favored the justices. But today, after a series of 5 to 4 decisions in high-profile cases such as Bush v. Gore, Citizens United and the Affordable Care Act, 75 percent of Americans believe that the justices’ decisions are influenced by their personal or political views.
They’re right. The court headed by right-wing Chief Justice John Roberts has suppressed the ability to organize through labor unions. It has weakened the right to bring class-action lawsuits. It has impeded ordinary people’s access to courts. It has given corporations more power — and personhood — to inflict their will on Americans. It has shielded financial institutions from accountability. It even threatened the Constitution’s commerce clause in its health-care decision, putting a range of social programs and protections at risk.
Unless progressives find a new way forward, the juris-corporatists will only strengthen their grip on our courts. As Alliance for Justice President Nan Aron outlines in this week’s issue of the Nation (which is devoted to the 1 percent court), progressives cannot sit on the sidelines. Indeed, they should take a page from the Powell playbook, adopting “a new way of thinking about the courts, new tactics for shaping the public debate, and a whole lots more energy from the left.”
Progressives should focus on “building the bench for the bench” with a pipeline of progressive legal talent ready to fill judicial appointments — and a Senate that understands the importance of those candidates. And just as conservatives have used the courts to mobilize their supporters, progressives must make this a galvanizing issue. This means educating the public about how Supreme Court decisions impact almost every aspect of their lives. Moreover, progressives must reshape the debate by exposing the hypocrisy of a right wing that criticizes so-called “activist judges” on the left while aggressively pushing justices who legislate from the bench.
In the four decades since the Powell memo, the right has understood and used the power of the courts to shape U.S. politics, U.S. policies and the U.S. economy, while progressives simply haven’t demonstrated the same intensity on this issue.
In this election year, with so much at stake, there is an enormous opportunity to close that intensity gap. Unless the Supreme Court becomes a central issue in this election, progressives are at risk of losing everything they care about, fought for and won.
This is no exaggeration. Let’s not forget that Mitt Romney has resurrected Bork as his chief judicial adviser. This is a man who would overturn Roe v. Wade, who doesn’t think the equal protection clause applies to women, who consistently favors corporations over citizens, who opposes voting rights. He originally opposed the 1964 Civil Rights Act! As Sen. Edward Kennedy said before the Senate rejected the nomination, in Bork’s America, “the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are at the heart of our democracy.”
With Mitt Romney in the White House, Bork would be in a position to reverse the progress the United States has made to expand its democracy.
In this election, Americans have a choice that is bigger than the next four years. They will choose between those who would turn the clock back economically, culturally and socially to the days before the New Deal, or those who want to build a more just, fair and diverse 21st-century society.
Three years ago today, the first Supreme Court confirmation battle of Barack Obama’s presidency came to an end. Justice Sonia Sotomayor took the oath of office on August 8, 2009, after enduring days of hearings at which she had been lambasted by Senate Republicans for such offenses as calling herself a “wise Latina” and acknowledging, like many male nominees before her, the shocking fact that her life experiences had shaped her perspective on the law.
In the three years since, I’ve been relieved to have Justice Sotomayor on the Court. I haven’t agreed with all her decisions, but she has shown time and again that she understands how the Constitution protects our rights — all of our rights. In 2010, she dissented to the Court’s disastrous Citizens United decision, which twisted the law and Constitution to give corporations and the super wealthy dangerous influence over our elections. In 2011, she joined the four-justice minority that stood up for the rights of women Wal-Mart employees who were the victims of entrenched sex discrimination. This year, she was part of the narrow majority that upheld the Affordable Care Act, saving a clearly constitutional law that is already helping millions of Americans receive health care coverage.
Over and over again in the past years, the Supreme Court has split between two very different visions of the law and the Constitution. On one side, we have justices like Sotomayor who understand how the Constitution protects all of our rights in changing times. On the other side, we have right-wing justices like Clarence Thomas and Samuel Alito, who are determined to walk back American progress, turn their backs on the values enshrined in the Constitution, and ignore decades of our laws and history. On issues from voting rights to women’s equality to environmental regulation, Americans’ rights are being decided by the Supreme Court — often by a single vote. Even the decision to uphold health care reform, in which Chief Justice John Roberts joined Sotomayor and the three other moderates on the court, would not have been as close as it was if the Court had not moved steadily to the right.
November’s presidential election will be a turning point for the Supreme Court. The next president will likely have the chance to nominate at least one Supreme Court justice, setting the course of the Court for decades to come. President Obama has shown his priorities in his picks of Justice Sotomayor and Justice Elena Kagan.
Mitt Romney has a very different vision for the Supreme Court. Campaigning in Puerto Rico earlier this year, Romney bashed Sotomayor — who also happens to be the first Hispanic Supreme Court justice and the Court’s third woman ever. Instead, he says he’d pick more justices like Thomas, Alito and Antonin Scalia, the core of the right-wing bloc whose decisions are systematically rolling back Americans’ hard-won rights. He used to say that he’d pick more Justices like Chief Justice Roberts, but changed his mind when Roberts ruled in favor of the health care reform plan similar to the one that Romney himself had helped pilot in Massachusetts.
So who would Romney pick for the Supreme Court? We’ve gotten a hint from his choice of former judge Robert Bork as his campaign’s judicial advisor. Bork’s brand of judicial extremism was so out of step with the mainstream that a bipartisan majority of the Senate rejected his nomination to the Supreme Court in 1987. Bork objected to the part of the Civil Rights Act of 1964 that desegregated lunch counters; he defended state laws banning birth control and “sodomy”; he was unabashedly in favor of censorship; he once ruled that a corporation could order its female employees to be sterilized or be fired. And, though it might not seem possible, since his confirmation battle Bork has gotten even more extreme.
Any justice appointed by Romney would likely fall in the footsteps of Bork in undermining workers’ rights, eliminating civil rights protections, siding with corporations over the rights of individuals, threatening women’s reproductive freedom, and rolling back basic LGBT rights. President Obama, on the other hand, has promised to pick more justices who share the constitutional values of Justice Sotomayor.
Three years into the term of Justice Sotomayor, the Court hangs in the balance. It’s important that we all know the stakes.
By: Michael B. Keegan, The Huffington Post, August 8, 2012
So the Supreme Court — defying many expectations — upheld the Affordable Care Act, a k a Obamacare. There will, no doubt, be many headlines declaring this a big victory for President Obama, which it is. But the real winners are ordinary Americans — people like you.
How many people are we talking about? You might say 30 million, the number of additional people the Congressional Budget Office says will have health insurance thanks to Obamacare. But that vastly understates the true number of winners because millions of other Americans — including many who oppose the act — would have been at risk of being one of those 30 million.
So add in every American who currently works for a company that offers good health insurance but is at risk of losing that job (and who isn’t in this world of outsourcing and private equity buyouts?); every American who would have found health insurance unaffordable but will now receive crucial financial help; every American with a pre-existing condition who would have been flatly denied coverage in many states.
In short, unless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with — and, very likely, you. For almost all of us stand to benefit from making America a kinder and more decent society.
But what about the cost? Put it this way: the budget office’s estimate of the cost over the next decade of Obamacare’s “coverage provisions” — basically, the subsidies needed to make insurance affordable for all — is about only a third of the cost of the tax cuts, overwhelmingly favoring the wealthy, that Mitt Romney is proposing over the same period. True, Mr. Romney says that he would offset that cost, but he has failed to provide any plausible explanation of how he’d do that. The Affordable Care Act, by contrast, is fully paid for, with an explicit combination of tax increases and spending cuts elsewhere.
So the law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society.
Which brings us to the nature of the people who tried to kill health reform — and who will, of course, continue their efforts despite this unexpected defeat.
At one level, the most striking thing about the campaign against reform was its dishonesty. Remember “death panels”? Remember how reform’s opponents would, in the same breath, accuse Mr. Obama of promoting big government and denounce him for cutting Medicare? Politics ain’t beanbag, but, even in these partisan times, the unscrupulous nature of the campaign against reform was exceptional. And, rest assured, all the old lies and probably a bunch of new ones will be rolled out again in the wake of the Supreme Court’s decision. Let’s hope the Democrats are ready.
But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal to help Americans with pre-existing conditions, Americans who simply can’t afford expensive individual insurance, Americans who lose coverage along with their jobs. But it has long been obvious that the opposition’s goal is simply to kill reform, never mind the human consequences. We should all be thankful that, for the moment at least, that effort has failed.
Let me add a final word on the Supreme Court.
Before the arguments began, the overwhelming consensus among legal experts who aren’t hard-core conservatives — and even among some who are — was that Obamacare was clearly constitutional. And, in the end, thanks to Chief Justice John Roberts Jr., the court upheld that view. But four justices dissented, and did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship.
The point is that this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.
But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 28, 2012