“Sotomayor, Kagan Ready For Battles”: You May Have The Votes Conservatives, But You’re Going To Have A Fight
For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.
As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.
The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”
Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Scalia replied to Kagan, “Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.”
Justice Stephen Breyer defused the tension. “I don’t know what they’re thinking exactly,” he said, changing the subject.
The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.
Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)
Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight.
Wednesday’s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.
Sotomayor allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “Assuming I accept your premise — and there’s some question about that — that some portions of the South have changed, your county pretty much hasn’t,” she charged. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Moments later, Kagan pointed out that “Alabama has no black statewide elected officials” and has one of the worst records of voting rights violations.
Scalia and Justice Samuel Alito tried to assist the Alabama county’s lawyer by offering some friendly hypotheticals, but Sotomayor wasn’t interested in hearing that. “The problem with those hypotheticals is obvious,” she said, because “it’s a real record as to what Alabama has done to earn its place on the list.”
Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”
At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.
Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.
Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)
But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.
By: Dana Milbank, Opinion Writer, The Washington Post, February 27, 2013
“Scalia’s Weird Voting Rights Act Spat”: A Perpetuation Of A White Supremist Argument
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
“SCOTUS Sanctioned Racism?”: Conservative Justices Attack The Voting Rights Act
As a statue paying tribute to civil rights pioneer Rosa Parks was unveiled in Washington, D.C., the Supreme Court heard arguments in the case of Shelby County v. Holder, which will decide the Constitutionality of the Voting Rights Act of 1965 that bears Ms. Parks’ name.
Section 5 of the VRA requires election officials in selected states and regions, mostly in the South, to pre-clear any changes to voting laws. This provision has been called the “cornerstone of civil rights law” in America.
“Is it the government’s submission that citizens in the South are more racist than citizens in the North?” asked Supreme Court Chief Justice John Roberts.
Solicitor General Donald Verrilli said no.
Roberts noted that Massachusetts had the lowest turnout rate of black voters while Mississippi had the highest. He and all of the conservative justices on the court expressed skepticism of the continued relevance of a law that was originally intended to be an emergency accommodation.
The Voting Rights Act was renewed for 25 years by a Republican Congress and signed by George W. Bush in 2006. But right-wing organizations and donors have waged a two-decade campaign to destroy Section 5.
The law was deemed Constitutional in 1999, before Roberts and Justice Samuel Alito joined the Court. Justice Clarence Thomas has previously called Section 5 unconstitutional and Justice Antonin Scalia’s antipathy to the law was clear to all in attendance.
Scalia called Section 5 a “perpetuation of racial entitlement” and suggested that Congress could never be convinced to let the law lapse. “They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
Justice Sonia Sotomayor twice asked Scalia, “Do you think Section 5 was voted for because it was a racial entitlement?” He did not answer either time.
Experts believe that Justice Anthony Kennedy will be the deciding vote on the case. He appeared extremely troubled by the idea of pre-clearance, saying it put some states under the ”trusteeship of the United States government.”
“Times change,” Kennedy said at one point.
“Kennedy asked hard questions — that’s his job,” Myrna Perez, a senior counsel with the Brennan Center, told the Washington Post‘s Greg Sargent. “But the questions didn’t signal the law’s demise.”
Verrilli pointed out that jurisdictions can “bail out” of the pre-clearance requirement once they’ve demonstrated a 10-year discrimination-free record — nearly 250 of the 12,000 state, county and local governments covered by the law have bailed out.
Justice Elena Kagan noted that the covered jurisdictions hold 25 percent of the U.S. population, but account for 56 percent of voting-rights lawsuits.
Sotomayor asked Bert Rein, the lawyer representing Shelby County, Alabama, ”Why would we vote in favor of your county, whose enforcement record is the epitome of the reasons that cause this law to be passed in the first place?”
In his brief, Rein argued that conditions that made the law necessary no longer exist.
The Nation‘s Ari Berman, who was at the hearing, noted that the rash of legislative attempts to restrict voting rights since 2010, which he’s called the “GOP’s War on Voting,” never came up during the arguments.
By: Jason Sattler, The National Memo, February 27, 2013
“Degrees Of Principle”: In A Sane World, Gun Control Proposals Are Hardly Draconian
Unlike many who recently have joined the debate about gun rights, I have a long history with guns, which I proffer only in the interest of preempting the “elitist, liberal, swine, prostitute, blahblahblah” charge.
I grew up in a home with guns, lots of them, and was taught early how to shoot, care for firearms and treat them respectfully. My father’s rules were simple: Never point a gun at someone unless you intend to shoot them; if you intend to shoot, aim to kill.
Dear ol’ Dad was a law-and-order guy — a lawyer, judge and World War II veteran who did everything by the book — except when it came to guns. Most memorable among his many lectures was a confidence: “There is only one law in the land that I would break,” he told me. “I will never register my guns.”
I suppose if he hadn’t also opposed bumper stickers, he might have attached the one about “cold dead fingers” to his fender. He also might have liked a slogan I read recently: “With guns, we are citizens; without them, we are subjects.”
By today’s standards my father would be considered a gun nut, but his sentiments were understandable in the context of his time. Like others of his generation, he had witnessed Germany’s disarming of its citizenry and the consequences thereafter. Thus, the slippery slope of which gun-rights advocates speak is not without precedent or reason.
But the history of gun-control laws is not without contradictions and ironies that belie the current insistence that guns-without-controls is the ipso facto of originalist America. In fact, the federal government of our Founders made gun ownership mandatory for white males, while denying others — slaves and later freedmen — the privilege.
Today, the most vociferous defenders of gun rights tend to be white, rural males who oppose any regulation. But theirs was once the ardently held position of radical African Americans. Notably, in the 1960s, Black Panthers Bobby Seale and Huey Newton toted guns wherever they went to make a point: Blacks needed guns to protect themselves in a country that wasn’t quite ready to enforce civil rights.
In one remarkable incident in May 1967, as recounted in The Atlantic by UCLA law professor Adam Winkler, 24 men and six women, all armed, ascended the California capitol steps, read a proclamation about gun rights and proceeded inside — with their guns, which was legal at the time.
Needless to say, conservatives, including then-Gov. Ronald Reagan, were suddenly very, very interested in gun control. That afternoon, Reagan told reporters there was “no reason why on the street today a citizen should be carrying loaded weapons.”
The degree of one’s allegiance to principle apparently depends mainly on who is holding the gun.
While black activists were adamant about their right to protect themselves, the National Rifle Association wasn’t much interested in the constitutional question until the mid-’70s, when an organizational split produced a new leader, Harlon Carter, who was dedicated to advocacy and determined to dig a deep line in the Beltway sand.
The Second Amendment debate about what the Founders intended was clarified in 2008 when theSupreme Court in District of Columbia v. Heller determined that the right of the people to keep and bear arms included individuals, not just a “well-regulated militia.” However, as Winkler pointed out, Justice Antonin Scalia’s opinion left wiggle room for exceptions, including prohibitions related to felons and the mentally ill. Scalia was not casting doubt, the justice wrote, on “laws imposing conditions and qualifications on the commercial sale of arms.”
This still leaves open the loophole of private sales that do not require background checks, which President Obama wants to close. We will hear more about this in coming weeks, but the call meanwhile to ban assault weapons or limit magazines in the wake of the horrific mass murder of children and others at Sandy Hook Elementary in Connecticut is hardly draconian. It won’t solve the problem of mentally disturbed people exacting weird justice from innocents, but it might limit the toll. Having to stop one’s rampage to reload rather breaks the spell, or so one would imagine.
One also imagines that the old Reagan would say there’s no reason a citizen needs an assault weapon or a magazine that can destroy dozens of people in minutes. He would certainly be correct and, in a sane world, possibly even electable.
By: Kathleen Parker, Opinion Writer, The Washington Post, January 11, 2013
“Willfully Ignoring Everything Romney Has Said”: Log Cabin Republicans Kidding Themselves About A Romney Supreme Court
I’m not surprised that the Log Cabin Republicans have gone against the best interests of LGBT Americans in endorsing Mitt Romney. Responding to their rationalization would normally not be worth the time, but one of their attempts at self-justification deserves a response. They claim, “Those who point fearfully to potential vacancies on the United States Supreme Court, we offer a reminder: five of the eight federal court rulings against DOMA were written by Republican-appointed judges. Mitt Romney is not Rick Santorum, and Paul Ryan is not Michele Bachmann.”
The Log Cabin Republicans have willfully ignored everything Mitt Romney has said about the Supreme Court.
Romney has said that he will appoint Supreme Court justices and lower court judges in the mold of Antonin Scalia and Clarence Thomas, who are both adamantly opposed to protecting the rights of gay people under the Constitution. Both dissented in Lawrence v. Texas, the ruling that ended criminal sodomy laws. In his dissent, Scalia accused the Court’s majority of signing on to the “homosexual agenda.” These are the kind of justices that Mitt Romney has promised to nominate to the Supreme Court.
We can also look to Romney’s choice of Robert Bork to lead his judicial advisory committee, a clear signal that he’s ready to cede judicial nominations to the religious right. Bork has vehemently disagreed with every pro-gay-rights decision the Supreme Court has ever made, and he even claims that marriage equality will lead to “man-boy associations” and “polygamy.” This is who Romney has picked to advise him on judicial nominations.
Romney doesn’t just support amending the Constitution to prohibit marriage equality, an amendment that every justice would be obliged to enforce. Everything Romney has said about judicial nominations indicates that he will appoint Supreme Court justices and lower court judges who will do lasting damage to the rights of all Americans — including LGBT people. No LGBT American or anyone who believes in equality should be fooled into thinking otherwise.
By: Michael B. Keegan, The Huffington Post Blog, October 23, 2012
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