“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 Consequences Of One Vote Majorities”: In 2016, Remember This Week At The Supreme Court
It’s been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act — the discriminatory law that has hurt so many Americans in its nearly 17 years of existence — and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.
But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.
It remains true that this Supreme Court is one of the most right-leaning in American history. The majority’s head-in-the-sand decision on the Voting Rights Act — declaring that the VRA isn’t needed anymore because it’s working so well — was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people’s lives.
We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia — no stranger to anti-gay rhetoric — wrote an apoplectic rant of a dissent denying the Court’s clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia’s dissent could have been the majority opinion.
Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn’t have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.
As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let’s not forget what happened this week.
By: Michael B. Keegan, The Huffington Post, June 26, 2013
“Congress As It Actually Is”: When The Voting-Rights Challenge Lands On Capitol Hill, A Strong GOP Incentive Not To Act At All
The Supreme Court’s ruling on the Voting Rights Act was almost clever, in an ugly and deceptive sort of way. The five-member conservative majority conceded what a great law the VRA has been, and hailed its efficacy over the years. (In a curious twist, the justices believe the law such a great success it magically became unconstitutional when we weren’t looking.)
Today’s ruling even left Section 5 of the law more or less intact, endorsing at least the concept of pre-clearance before states and municipalities can change their voting laws. So what’s the problem?
Actually, everything. While the high court’s ruling may seem fairly narrow — the majority said they simply want Congress to replace an old formula with a new one — it also probably marks the end of the Voting Rights Act. Today’s ruling calls for a fix, but as a practical matter, it guts the landmark civil-rights law.
The ruling, a 5-4 decision by Chief Justice John Roberts, leaves the future of the law deeply uncertain because it will be up to a sharply divided Congress to redraw the map, if it can agree on one at all.
“In practice, in reality, it’s probably the death knell of this provision,” said Tom Goldstein, the publisher of SCOTUSblog and a Supreme Court analyst for NBC News.
If we wore some kind of Rawlsian veil of ignorance, and forgot everything we know about the contemporary U.S. Congress, this wouldn’t necessarily have to be considered a complete disaster. Given widespread voting problems, a competent and capable legislative branch of government might even see the ruling as an opportunity to pursue meaningful election reforms.
But if we drop the veil, we see Congress as it actually is — an institution where procedural abuses are the norm, an extremist caucus holds control of the lower chamber, the politics of extortion and hostage strategies is routine, and lawmakers struggle badly to complete even rudimentary tasks.
And it’s not just about Congress’ dysfunction. As recently as 2006, the Voting Rights Act was easily reauthorized by large bipartisan majorities, and signed into law by a Republican president. But by any fair measure, the radicalization of Republican politics has intensified greatly over the last seven years.
Indeed, I imagine GOP lawmakers will see a strong incentive not to act at all on this issue — with the 2014 midterms coming up, and Republicans in the majority in so many state legislatures (especially in the South), the party will likely be content to reject all pre-clearance measures and encourage red-state lawmakers to enact sweeping new voting restrictions without fear of Justice Department oversight. In the process, Democratic hopes for electoral gains next November will be further undermined by institutional, not political, barriers.
The war on voting, in other words, is just getting started, and is poised to claim more casualties.
There is one more angle to keep in mind, though. You’ll recall that the Republican National Committee has said it’s sincere about outreach to minority communities and expanding its base beyond the GOP’s overwhelmingly white, older supporters.
If Republican lawmakers refuse to work constructively on the Voting Rights Act, and perhaps even kill immigration reform, the setback for the party’s alleged outreach efforts will be immeasurable.
By: Steve Benen, The Maddow Blog, June 25, 2013
“Correcting The Record Of Strategic Disinformation”: We Have The Most Conservative Supreme Court In Decades
In recent years, the United States Supreme Court has turned corporate treasuries into campaign slush funds for CEOs, demolished campaign finance laws, aided and abetted pay discrimination, made it much harder for consumers and workers to file class action lawsuits against corporations that have cheated them, and kindly delivered the White House to one lucky Republican from Texas.
Study after study has found that the Supreme Court under Chief Justice John Roberts and his predecessor William Rehnquist has swerved hard to the right, systematically favoring corporate interests over workers, consumers and voters — to a shocking extent.
So why does a plurality of Americans still think that the Supreme Court leans to the left?
A new poll from Public Policy Polling finds that 36 percent of Americans believe the Supreme Court is “too liberal,” compared with just 30 percent who find it “too conservative” and 29 percent who think it’s ideologically “about right.” The poll highlights a problem that has long plagued progressives who care about the courts: while the Supreme Court and lower federal courts continue to drive to the right, many Americans, strangely, have come to believe that the courts tilt to the left.
This misperception of the federal judiciary, and especially the Supreme Court, is no fluke. It is the residue of more than a half-century of propaganda by the right labeling the Supreme Court a bastion of runaway liberal judicial activists who supersede the will of the people to impose their own views on innocent Americans. This campaign began with “massive resistance” to landmark civil rights and civil liberties decisions of the Warren Court, most notably Brown v. Board of Education (1954), which desegregated the schools and prompted an “impeach Earl Warren” movement; Engel v. Vitale (1962), which struck down compulsory prayer in the schools and was blamed for the moral downfall of America; and Miranda v. Arizona (1966), which gave people basic rights in encounters with the police and was decried as “pro-criminal.” The campaign against the Court intensified with the response to Roe v. Wade (1973), which recognized the reproductive rights of women as a matter of constitutional privacy but has been depicted ever since by the right as the epitome of illegitimate judicial activism.
The movement to turn the clock back on civil rights and civil liberties in the courts has continued for decades and been bolstered by the Chamber of Commerce and big business, which want to see the federal judiciary enshrine new constitutional rights for corporations while dismantling public regulation.
In recent decades, right-wing leaders have worked in popular culture to attack the courts as a liberal peril while successfully organizing to dominate and control legal institutions to create courts that no longer look out for the rights of all Americans. They have set up law schools and legal societies to promote corporate and right-wing commitments, have promoted the appointment of reactionary judges and Justices, blocked the appointment of even moderate jurists, and defined a legal agenda that subordinates individual rights to government power and public regulation to corporate power. Right-wing success in remaking the judiciary in the image of the Republican Party has not led conservatives to curb their bitter attack on “liberal judicial activism,” a fantasy that is several decades out of date but indispensable to this smoke-and-mirrors operation.
Without mass education by progressives to reclaim the public narrative about the courts, popular illusions about the nature of our right-wing judiciary will persist. A perfect example of public confusion is the reaction to the Supreme Court’s narrow decision to uphold the Affordable Care Act. Chief Justice Roberts’ decisive vote to uphold the law was hailed on the left and seen as a stunning betrayal on the right. But what got little attention was how conservative the logic of the decision to uphold the ACA really was. While the final outcome was good news for progressives, Roberts’ opinion laid the groundwork for severely restricting the ability of the federal government to solve national problems under the Commerce Clause — harkening back to the gilded-age Lochner Era, when the Supreme Court routinely struck down regulatory protections for ordinary Americans.
The left needs to wake up. PPP found that less than half of Democrats recognized the conservative leaning of the Supreme Court. As the Supreme Court’s blockbuster decisions on marriage equality, voting rights and affirmative action come down this spring we may have some reasons to celebrate and others to mourn. But we will doubtless be reminded again that Supreme Court decisions often have much less to do with evolving legal theory than with which president appointed the Justices. Conservatives know this and liberals need to wake up to it as well.
Four decades into conservative control of the Supreme Court (through the Burger, Rehnquist and Roberts Courts), and well into President Obama’s second term, conservatives still promote the absurd story that the Supreme Court and judiciary are “liberal.” We must do everything we can to correct the record and dispel the lingering false impressions left by decades of strategic disinformation.
By: Michael B. Keegan, The Huffington Post, May 24, 2013
“Victimhood”: Ignoring One Wrong And Vilifying The Other, Republicans Decide To Care About Big Government Overreach
Government officials and employees responsible for the allegedly inappropriate scrutiny of right-wing groups applying for non-profit, tax-exempt status as “social welfare organizations” (taxpayer subsidized, supposedly non-partisan 501(c)(3) and (c)(4) groups) should be investigated and, if appropriate, disciplined, fired and/or charged under criminal statutes.
Government officials and employees responsible for secretly subpoenaing the phone records of AP reporters ought to similarly be investigated and, if appropriate, disciplined, fired and/or charged under criminal statutes — though it is likely that the government has already given itself legal dispensation to carry out that sort of invasive, seemingly extra-Constitutional, certainly un-American intimidation of whistleblowers and journalists alike.
That said, it’s been predictably amusing over the past 24 hours or so, witnessing the outrage – outrage! – of right-wingers over the very things that they not only didn’t give a rat’s ass about when the same, and often much worse, was carried out by the Bush administration, but that they actively supported at the time.
“They say two wrongs don’t make a right, but ignoring one of those wrongs while vilifying the other is intellectually dishonest and violently hypocritical, among other things,” writes Bob Cesca at The Daily Banter, noting that “Democrats have almost universally condemned the actions of the IRS, as they’ve done when the congressional Republicans and, naturally, the Bush administration used the nearly unlimited might of the government to engage in similar investigations — or worse.”
“Republicans,” he writes, “spent eight years defending, applauding and enabling Bush abuses on this front, while subsequently cheerleading the congressional Republicans as they carry forward the politics of intimidation and government overreach into the Obama era.”
Cesca goes on to list “10 Examples of Bush and the Republicans Using Government Power to Target Critics”, beginning with the Republican-supported Big Government assaults on Planned Parenthood, ACORN (which succeeded in putting a four-decade-old community organization out of business), and on even the ability of perfectly legal American voters to simply cast a vote in their own elections. He also reminds us of the abuse of the Bush Dept. of Justice which, specifically, targeted Democrats for prosecution, and for the firing of U.S. Attorneys without cause, other than they were not partisan enough for the tastes of the Bush White House.
But while the Obama administration deserves appropriate scrutiny and investigation and accountability for whatever its part in both the developing IRS and DoJ/AP scandals, let us not forget some of these certainly-as-bad, arguably-worse scandals related to both the IRS and the DoJ — from during the Bush administration — that Republicans not only didn’t give a damn about, but often applauded for most of the past decade…
6. The Bush IRS Audited Greenpeace and the NAACP. Not only was the NAACP suspiciously audited during Bush’s 2004 re-election campaign, but high-profile Republicans like Joe Scarborough had previously supported an audit of the organization even though he’s suddenly shocked by the current IRS audit story. Also in 2004, the Wall Street Journal reported that the IRS audited the hyper-liberal group Greenpeace at the request of Public Interest Watch, a group that’s funded by Exxon-Mobil.
7. The Bush IRS Collected Political Affiliation Data on Taxpayers. In 2006, a contractor hired by the IRS collected party affiliation via a search of voter registration roles in a laundry list of states: Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Louisiana, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina, Texas, Utah and Wisconsin. This begs the obvious question: why? Why would the IRS need voter registration and party affiliation information?
8. The Bush FBI and Joint Terrorism Task Force Targeted Civil Rights / Anti-War Activists. In 2005, an ACLU investigation revealed that both the FBI and the JTTF surveilled and gathered intelligence about a variety of liberal groups including PETA and the Catholic Workers, along with other groups that it hyperbolically referred to as having “semi-communistic ideology.”
9. The Bush Pentagon Spied on Dozens of Anti-War Meetings. Also in 2005, the Department of Defense tracked 1,500 “suspicious incidents” and spied on four dozen meetings involving, for example, anti-war Quaker groups and the like. Yes, really. The Bush administration actually kept track of who was attending these meetings down to descriptions of the vehicles used by the attendees, calling to mind the pre-Watergate era when the government investigated 100,000 Americans during the Vietnam War.
10. The Bush FBI Targeted Journalists with the New York Times and the Washington Post. Yesterday, it was learned that a U.S. attorney, Ronald Machen, subpoenaed and confiscated phone records from the Associated Press as part of a leak investigation regarding an article about a CIA operation that took place in Yemen to thwart a terrorist attack on the anniversary of bin Laden’s death. Well, this story pales in comparison with the Bush administration’s inquisition against the reporters who broke the story about the NSA wiretapping program. In fact, the Justice Department considered invoking the Espionage Act of 1917, the archaic sequel to the John Adams-era Alien and Sedition Acts. The Bush FBI seized phone records — without subpoena — from four American journalists, including Raymond Bonner and Jane Perlez. How do we know this for sure? Former FBI Director Robert Mueller apologized to the New York Times and the Washington Post.
I’m delighted, personally, that the Republican Party and its adherents have finally decided to be outraged about actual governmental abuses of power. I’m even more delighted that they may now be focusing some of that outrage on actual abuses (as opposed to all of the pretend “scandals” they’ve been pretending to be outraged about over the past four years). But it will be all too convenient if the only such abuses they ultimately concern themselves with are the ones that affected their own special-interest groups, rather than those that have illegally and/or unconstitutionally affected the interests of all Americans for at least the past decade and more.
It will be a shame if the result of all of this is that the 501(c)(4) and (c)(3) racket that exploded in the wake of the U.S. Supreme Court’s Citizens United atrocity goes unexamined and un-overturned. As is, the IRS was doing a dreadful job in cracking down on that particularly obvious scam, and it’s almost certain that all of this will only make the appalling taxpayer-subsidized abuse by purely political groups masquerading as non-partisan “social welfare organizations” even worse.
But it will be even more of a shame if the Big Government abuses of power under the Obama administration are dealt with as special cases that occurred in a vacuum. They did not. They have been happening for years, under the Bush administration and now under the Obama administration. (For that matter, the IRS abuses now in question happened while the agency was headed up by George W. Bush’s appointee.) All of those Big Government abuses deserve oversight and governmental action and legislation to ensure that none of them can ever happen again in the future.
Unfortunately, that is unlikely to happen in a political atmosphere where one party (the Republicans) and its supporters have chosen “victimhood” as a personal political philosophy and a wartime footing against their perceived enemy (the Democratic Party) as a point of personal pride, rather than displaying any interest whatsoever in actually governing on behalf of the American people or in ending the opportunities for the very Big Government abuses they decry — but only when it affects them.
By: Brad Friedman, The National Memo, May 15, 2013, Originally posted at The Brad Blog
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