“John Roberts, Pitcher And Batter”: The Voting-Rights Decision Spells The End Of Fair Elections
The Supreme Court delivered a sucker punch to fair elections today, striking down a key part of the Voting Rights Act. It is a ruling that will make it much easier for partisan election officials and legislators to rig the voting system — and a lot harder for ordinary voters to participate in democracy.
The ruling is also a huge Supreme Court power grab. How big? In 2006, Congress reauthorized the Voting Rights Act by a vote of 98-0 in the Senate and 390-33 in the House (and President George W. Bush signed it into law). Now, five Justices have swept away the decision of all those elected leaders — over the vociferous dissent of four other Justices.
At his confirmation hearing, Chief Justice John Roberts — who wrote today’s majority opinion — famously declared that as a Justice, “my job is to call balls and strikes and not to pitch or bat.” But in nullifying one of the most important pieces of civil rights legislation in U.S. history, he picked up a bat and swung for the bleachers.
The part of the Voting Rights Act that the court held unconstitutional (Section 4) was a critical one: the formula that specifies which particular states and localities must clear significant voting changes in advance with the Justice Department. That process — “preclearance” — ensures that unfair voting rules can be stopped before they are allowed to interfere with actual elections.
An example of why it’s needed: in 2001, the all-white leadership of Kilmichael, Miss., abruptly canceled the town election when it looked like voters might elect the first black mayor. Using the Voting Rights Act, the Justice Department required that the election go forward — and a black mayor was elected. That was only one of more than 700 discriminatory voting changes the Justice Department blocked from 1982 to 2006.
The Supreme Court’s majority was troubled by the specific states and localities that the Voting Rights Act’s “preclearance” rules apply to. Why Alabama and not Vermont? Why Brooklyn and the Bronx, but not Lincoln, Neb.? The simple answer is that these are the jurisdictions Congress chose after careful consideration. It held 21 hearings and heard from scores of witnesses — it produced a 15,000-page record — before reauthorizing the law in 2006. Without doing any of that work, five Justices have said they know better.
Now that the formula has been thrown out, the whole process of preclearance is effectively thrown out as well. In theory, Congress could come up with another formula — and a list of states and localities — that the Supreme Court would find constitutional. But it would be a legislative nightmare for Congress to try to do that — and no one expects that to happen anytime soon.
So what does the gutting of the Voting Rights Act mean for American democracy? It will be easier for bad-apple election officials to revive classic vote-suppression tactics — like moving polling places at the last minute, so voters cannot find them, or getting eligible voters off the rolls. And it will be easier for state legislatures to draw district lines to divide up minority voters and dilute their power at the polls.
The majority dismisses all these very real concerns, arguing that “things have changed” since the bad, pre-civil-rights-era days. Of course, even if that were so, it would not mean that we don’t need the Voting Rights Act. As Justice Ruth Bader Ginsburg wrote for the dissenters, that sort of logic is “like throwing away your umbrella in a rainstorm because you are not getting wet.” Now that the Supreme Court has gutted the Voting Rights Act, we should get ready for an antidemocratic downpour.
By: Adam Cohen, Time, June 25, 2013
“Antonin Scalia And His Argle-Bargle”: He Doesn’t Want To Be Seen As The Bigot He Is
Justice Antonin Scalia’s dissent (pdf) in U.S. v. Windsor, the ruling that struck down the Defense of Marriage Act, is not subtle in its anger. The conservative Supreme Court jurist refers on page 22, for example, to the “legalistic argle-bargle” the court majority uses as its rationale.
And as Paul Waldman explained, the dissent goes downhill from there.
Scalia is outraged at the majority’s contention that the core purpose of DOMA was to discriminate against gay people, and this, he asserts, means that they’re calling everyone who supports it a monster. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution,” he writes.
And more: “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
Yes, apparently Scalia is feeling a little defensive, so much so that he believes those who disagree with him are calling him an enemy of humanity. One gets the sense reading his dissent that he doesn’t want to be seen as a bigot, just because he’s on record describing homosexuality in his Lawrence v. Texas dissent as “a lifestyle” that should be seen as “immoral and destructive.”
But let’s also not overlook this curious argument from the beginning of his DOMA dissent:
“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. “
Really? When it’s the Voting Rights Act and the Affordable Care Act on the line, Scalia doesn’t hesitate to take an axe to “democratically adopted legislation,” approved by the elected representatives of Americans who are able to “govern themselves.” But when it’s the Defense of Marriage Act, Scalia suddenly remembers his affinity for restraint?
Exactly one year ago yesterday, following some of Scalia’s partisan antics, a constitutional law professor at UCLA said the conservative jurist “has finally jumped the shark.” At the time, that seemed like a reasonable assessment, and yet, Scalia somehow manages to get worse.
Update: Sahil Kapur takes the next step, listing “the top 10 quotes from the staunchly conservative jurist — a mix of rage-filled metaphors and legal punches.”
By: Steve Benen, The Maddow Blog, June 26, 2013
“The Arrogance Of The Third Political Branch”: The Supreme Court Uses Judicial Activism For Conservative Ends
We prefer to think of the Supreme Court as an institution apart from politics and above its struggles. In the wake of this week’s decision gutting the heart of the 1965 Voting Rights Act, its actions must now be viewed through the prism of the conservative movement’s five-decade-long quest for power.
Liberals will still win occasional and sometimes partial victories, as they did Wednesday on same-sex marriage. But on issues directly related to political and economic influence, the court’s conservative majority is operating as a political faction, determined to shape a future in which progressives will find themselves at a disadvantage.
It’s true that the rulings voiding the Defense of Marriage Act and California’s Proposition 8 show how the liberalizing trend on some social issues is hard for even a conservative court to resist.
The Defense of Marriage Act was invalidated because one of the conservatives, Justice Anthony Kennedy, has joined much of the American public in an admirable move toward greater sympathy for gay and lesbian rights.
And the decision on California’s anti-gay marriage law was reached by an ideologically eclectic majority on procedural grounds. Five justices held that the case had been improperly presented because the state of California declined to appeal a lower court’s ruling voiding the law.
This led to a middle-of-the-road outcome. The court declined to declare a national, Constitutional right to same-sex marriage, but did give gay-rights advocates a victory in California. By leaving the issue in the electoral sphere in most states, the court opened the way for further advances toward marriage equality, since public opinion is shifting steadily in its favor, fueled by strong support among younger Americans.
The marriage rulings, however, should not distract from the arrogance of power displayed in the voting rights decision written by Chief Justice John Roberts. His opinion involved little Constitutional analysis. He simply substituted the court’s judgment for Congress’ in deciding which states should be covered under the Section 4 of the Voting Rights Act, which required voting rules in states with a history of discrimination to be pre-cleared by the Justice Department.
The court instructed Congress to rewrite the law, even though these sophisticated conservatives certainly know how difficult this will be in the current political climate.
Whenever conservatives on the court have had the opportunity to tilt the playing field toward their own side, they have done so. And in other recent cases, the court has weakened the capacity of Americans to take on corporate power. The conservative majority seems determined to bring us back to the Gilded Age of the 1890s.
The voting rights decision should be seen as following a pattern set by the rulings in Bush v. Gore in 2000 and Citizens United in 2010.
Bush v. Gore had the effect of installing the conservatives’ choice in the White House and allowed him to influence the court’s subsequent direction with his appointments of Roberts and Justice Samuel Alito.
Citizens United swept aside a tradition going back to the Progressive Era — and to the Founders’ deep concern over political corruption — by vastly increasing the power of corporate and monied interests in the electoral sphere.
Tuesday’s Shelby County v. Holder ruling will make it far more difficult for African-Americans to challenge unfair electoral and districting practices. For many states, it will be a Magna Carta to make voting more difficult if they wish to.
The Constitution, through the 14th and 15th Amendments, gives Congress a strong mandate to offer federal redress against discriminatory and regressive actions by state and local governments. As Justice Ruth Bader Ginsburg noted in her scalding but very precise dissent, “a governing political coalition has an incentive to prevent changes in the existing balance of voting power.”
In less diplomatic language, existing majorities may try to fix election laws to make it far more difficult for their opponents to toss them from power in later elections. Republican legislatures around the country passed a spate of voter suppression laws disguised as efforts to guarantee electoral “integrity” for just this purpose.
Recall that when conservatives did not have a clear court majority, they railed against “judicial activism.” Now that they have the capacity to impose their will, many of the same conservatives defend extreme acts of judicial activism by claiming they involve legitimate interpretations of the true meaning of the Constitution.
It is an inconsistency that tells us all we need to know. This is not an argument about what the Constitution says. It is a battle for power. And, despite scattered liberal triumphs, it is a battle that conservatives are winning.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 27, 2013
“John Roberts Gets His Trophy”: Inventing A Previously Unheard Of “New Constitutional Doctrine”
In my focus on the joyful and immediate exploitation of the Supreme Court decision in Shelby County v. Holder by southern Republicans who behaved like they were in the midst of a jail break, I probably gave too little attention to the audacity of the decision itself. Ari Berman of The Nation offered some immediate observations, beginning with the stunning contrast between the Chief Justice’s solicitude for Congress is his dissent against the invalidation of the Defense of Marriage Act with his breezy contempt in Shelby County v. Holder:
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”
Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
But more fundamentally, as 7th Circuit Judge Richard Posner notes in a scathing review of Shelby County v. Holder for Slate, Roberts kind of made up the constitutional foundation for the decision: a previously unheard-of doctrine of the “equal sovereignty of the states.”
Roberts, of course, is rather famous for his specific hostility to the Voting Rights Act, as Adam Serwer pointed out at MoJo when this case was first argued:
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law. “I am sensitive to the controversy which has attached itself to some of the Act’s provisions, in particular those provisions which impose burdens unequally upon different parts of the nation,” Reagan wrote. “But I am sensitive also to the fact that the spirit of the Act marks this nation’s commitment to full equality for all Americans, regardless of race, color, or national origin.” Reagan didn’t go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.
Additionally, Roberts has been around the block enough times to know that a legislative “fix” to Section 4 either won’t happen (that’s my bet), or would take long enough that long-stalled voter suppression efforts in the Deep South will find their way into statute books and election procedures. Yes, the Justice Department and civil rights advocates will try to use Section 2 remedies in the absence of preclearance powers, but winning such cases typically requires after-the-fact demonstrations of harm to minority voting influence.
It took a while, and required looking far away from the congressional history of the Voting Rights Act, and inventing a new constitutional doctrine, but John Roberts got his trophy this week. He should have had the sense of decorum to assign the opinion to someone else.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 26, 2013
“The Initiative Process Just Got A Whole Lot Weaker”: How The Supreme Court Crippled Direct Democracy
Gay marriage advocates won a big dual victory in two cases decided by the Supreme Court on Wednesday. But one of the two decisions, the ruling that effectively struck down California’s Proposition 8, may have a very significant impact on governing that’s separate from the gay-marriage issue.
The Prop 8 ruling may have dealt a body blow to the ideal of direct democracy.
California voters approved Prop 8 in 2008. A district court decision later overturned the Prop. 8 law, and California’s elected officials refused to appeal. So the supporters of Proposition 8 sued instead. They won their case over whether they had the right to sue in the California Supreme Court. The U.S. Supreme Court saw things much differently. The Supreme Court, in a 5-4 decision, held that the plaintiffs lacked standing. The court ignored the underlying issue of gay marriage, and instead held that the anti-gay-marriage advocates couldn’t show they were harmed by the state government’s decision to ignore the initiative. The decision quotes an older Supreme Court ruling noting that the doctrine of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” But usurping the power of the political branches is exactly what the initiative is specifically designed to do.
The entire reason for initiatives is to bypass the office-holders in government. Former California Gov. Hiram Johnson, who was responsible for the state’s passage of the direct democracy provisions, said that the initiative would “give to the electorate the power of action when desired.” Frequently, the laws passed by initiative are unpopular or politically unpalatable with elected officials. Consider, for instance, California’s popularly approved initiative that stripped the power of redistricting from the state legislature.
The Supreme Court’s decision may mean that initiatives are now at the mercy of elected officials. Imagine a popularly approved referendum that is challenged and struck down in court. The government can just elect not to appeal — and thanks to the Supreme Court, no private citizens can step in to fill this void.
The track record of elected officials acting against their perceived self-interest is not good. You don’t just have to look at the sorry state of campaign finance laws, which frequently assist the incumbent, or in the use of redistricting to gerrymander impregnable districts. There’s also the initiative’s direct democracy cousin, the recall. In the past two years, we have seen numerous instances of elected officials across the country in local jurisdictions working to subvert the use of the recall against themselves or their colleagues. The officials may refuse to schedule a vote. In other cases, they sue under very questionable legal arguments to stop the recall from taking place. In one instance, a city council tried to kill the adoption of a recall law, only to be overturned by a charter commission and the voters.
Elected officials already have a great weapon. Supporters of recalls or initiatives have to pay legal fees out of their own pocket to force the elected officials to act. Elected officials usually have the luxury of defending the sometimes questionable decisions using government funds. But even that advantage pales in comparison to strength they’ve just been given by the Supreme Court.
Initiatives are frequently divisive and controversial, as Prop 8 shows. But the voters and officials of the 27 states with the initiative or popular referendum process in place are the ones who decided to grant people this power. They adopted these laws specifically to provide a way to bypass the governor and legislature and enact politically unpalatable laws. The Supreme Court may have just effectively shut that route down.
By: Joshua Spivak, The Week, June 28, 2013
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