“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?
In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.
By: Jay Michaelson, The Daily Beast, June 27, 2015
“Strange Justice”: A Victory For Right-Wing Ideology, But A Profound And Deep Loss For Racial Justice
Yesterday marked the twentieth anniversary of one of the great wrong turns in American civil-rights history, a grotesque decision that helped those who falsely and nonsensically believe that eliminating federal efforts to establish racial equality will somehow, in and of itself, establish racial equality. The horror of that day still reverberates, the pain of that moment still sears.
On June 12, 1995, the United States Supreme Court, in a ghastly 5-4 decision known as Adarand Constructors v. Pena, gutted the legal infrastructure upholding the country’s affirmative action programs:
In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ‘strict scrutiny,’ it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.
“Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constitution’s guarantee of equal protection of the laws protects “persons, not groups” of people.
“It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”
O’Connor and her conservative court colleagues effectively struck Rep. John Lewis in the head one more time with this disgusting and destructive ruling, which was, of course, seized upon by right-wing ideologues to block pathways to black progress. The Adarand decision represented the Supreme Court’s shout-out to those who believed that the federal government had done too much to combat past and present-day discrimination.
Perhaps the most repugnant aspect of this decision was the concurring opinion written by Justice Clarence Thomas–an opinion that rhetorically lynched his own black brothers and sisters. Then-TIME Magazine columnist Jack E. White was correct beyond refutation when he observed:
These days Washington seems to be filled with white men who make black people uneasy, like Newt [Gingrich] the slasher, Bill [Clinton] the waffler and Jesse the crank—Helms, that is, not Jackson. But the scariest of all the hobgoblins may well be a fellow African American, Supreme Court Justice Clarence Thomas. In the four years since George Bush chose him to fill the “black seat” vacated by Thurgood Marshall, Thomas has emerged as the high court’s most aggressive advocate of rolling back the gains Marshall fought so hard for. The maddening irony is that Thomas owes his seat to precisely the kind of racial preference he goes to such lengths to excoriate. And as long as he is on the court, no other black need apply: Thomas fills a quota of one.
The most disturbing thing about Thomas is not his conclusions, but his twisted reasoning and bilious rage. In his written opinions, he begins with premises that no self-respecting black would disagree with, then veers off into a neverland of color-blind philosophizing in which all race-based policies, from Jim Crow laws designed to oppress minorities to affirmative-action measures seeking to assist them, are conflated into one morally and legally pernicious whole. He delights in gratuitously tongue-lashing the majority of blacks who disagree with him on almost every civil rights issue. He heaps scorn on federal judges who have used the bench to enforce and expand civil rights, accusing them of a paternalistic belief in black inferiority…
[Thomas] does not hesitate to incorporate dubious theories into his opinions when they suit his purposes. In his brief concurring opinion in the court’s Adarand Constructors v. Pena, in which the court suggested that federal set-aside programs for minority contractors may be unconstitutional, Thomas wrote, “Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.” That claim reflects the wisdom of Gingrich country, where, as the House Speaker opined last week, most problems poor black people face are caused by their own “bad habits.”
What Thomas, O’Connor and their right-wing friends will never admit is that bigotry will always be with us; it is hard-wired into our very nature, and thus the federal government will always need to take measures to ensure that bigotry does not strangle the aspirations of Americans of color. To that end, there will never be a day that we can get rid of affirmative action. We will always need goals, timetables, set-asides, preferences and yes, even the dreaded quotas, as they are nothing more than tangible measures by which we seek to reduce racial inequality.
The Adarand decision did great violence to the dream of racial equality. It empowered aggrieved right-wing whites to attack affirmative action programs with vicious vehemence, and put white progressives on the defensive against dubious claims of so-called reverse discrimination. The case was a victory for right-wing ideology, but a profound and deep loss for racial justice.
By: D. R. Tucker, Political Animal Blog, The Washington Monthly, June 13, 2015
“As Dangerous As Thomas And Scalia”: Meet The Right-Wing Religious Zealot Who’d Rather Follow The Bible Than The Law
Happiness is boring a hole in your Hebrew slave’s ear with an awl, or so might well say Alabama Supreme Court Chief Justice and Baptist zealot Roy Moore.
Before I get to Moore and his grotesque, faith-lathered absurdities, though, a quick digression. Not a week goes by without our egregiously pious politicians outraging rationalist champions of the Constitution and the Bill of Rights.
Mike Huckabee, Republican presidential candidate and onetime Southern Baptist preacher, indicated he would, as head of state, obey the Supreme Being, not the Supreme Court, at least as regards same-sex marriage.
His rival and fellow evolution-naysayer Ben Carson urged his Christian co-religionists to stand up to “progressive bullying,” even though Christians account for seven out of ten Americans, and hardly amount to some beleaguered minority nonbelievers could push around, even if they wanted to.
And the Republican National Committee continues its affiliation with the Christian fundamentalist activist group, American Renewal Project, whose director, David Lane, is now calling for the establishment of Christianity as “the official religion of America.” Lane may have taken cues from that morose stalwart of antipathetic reaction, Supreme Court Justice Clarence Thomas. Don’t forget, a year ago Thomas, a Roman Catholic, aired the malodorous opinion that the First Amendment (which starts with “Congress shall make no law respecting an establishment of religion”) “probably” – italics mine, yes, sic, only “probably” – “prohibits Congress from establishing a national religion,” but should not hinder individual states from doing so.
With justices like Thomas, and if a Republican wins in 2016, the Supreme Court may well end up serving as the Doric-columned ossuary of the remains of our once gloriously godless Republic.
Now we come to Alabama Chief Justice Roy Moore. Speaking last week at the Family Research Council, a hyper-conservative Christian lobbying group in Washington, D.C., Moore defined the pursuit of happiness as a by-product of observing the often malicious edicts and baleful pronouncements pervading cock-and-bull fables originating with pastoral, semi-nomadic primitive tribes two or three millennia ago in a land far, far away; that is, the Bible. Moore declared, in obtusely baroque verbiage, that “It’s laws of God, for He is so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual that the latter cannot be obtained but by observing the former, and if the formerly be punctually abated it cannot help but induce the latter. You can’t help but be happy if you follow God’s law and if you follow God’s law, you can’t help but be happy. We need to learn our law.”
Translation: doing what the Bible says makes you happy.
Some readers might recall Moore from 2003, when he fought a federal injunction ordering him to remove a monument to the Ten Commandments he had arranged to be erected within the Alabama Judicial Building in Montgomery. Denouncing federal judges who held that the “obedience of a court order [is] superior to all other concerns, even the suppression of belief in the sovereignty of God,” Moore refused to comply, and was sacked from the court. Thousands of his supporters descended on the site. More than a year passed before the authorities managed to truck away the offending chunk of granite, a monstrosity so heavy it threatened to crash through the building’s floor.
A decade later, already a folk hero to the brute masses of his state afflicted with the malady of faith, Moore, as unrepentant as ever, found himself reelected to Alabama’s highest tribunal. Once again, he could not sit still. When the Supreme Court in Washington legalized same-sex marriage in Alabama last January, Roy forbade state employees and probate judges from carrying out such unions. In a contentious interview with CNN, Moore then proclaimed that “Our rights contained in the Bill of Rights do not come from the Constitution, they come from God.” He denied he was defying the Supreme Court; rather, he was protecting marriage, “an institution ordained of God.” His allegiance, as should now be clear, is not to the Constitution he has sworn to uphold, but to gobbledygook myths and a bogus Tyrant in the Sky. In other words, to the Bible and God.
One might be tempted to dismiss Moore as yet another faith-mongering, red-state ignoramus, but his status as chief justice should give us pause. Moreover, for decades now, those of the religious right have been laboring to force their superstitions, by hook or by crook, on the rest of us. In far too many states, for example, they’ve succeeded in legislatively thwarting Roe v. Wade to restrict women’s reproductive rights. Just last year, they won a Supreme Court case legalizing prayer in town meetings. And if non-belief is steadily gaining ground, those who remain Christian are increasingly evangelical — which is to say, politically active and well-funded. We thus find our cherished secularism under credible, and growing, threat.
In view of this, it behooves us to take Moore’s advice and look at what the Bible actually says. But which part are we to review, the ferociously censorious Testament 1.0, or its supposedly more clement 2.0 update?
Both. The Bible, often obscure and contradictory, could not be clearer about this. In Matthew 5:18-19 Christ decrees: “till heaven and earth pass away . . . whoever then relaxes one of the least of these commandments [in the Bible] and teaches men so, shall be called least in the kingdom of heaven.” In Luke 16:17, He reminds us that, “It is easier for Heaven and Earth to pass away than for the smallest part of the letter of the [Bible’s] law to become invalid.” His cohort Peter informs us (in Peter 2: 20-21) that “there is no prophecy of scripture that is a matter of personal interpretation.” Disregard, then, those who would have you think that the Old Testament has, in effect, expired, as well as mealy-mouthed apologists who say it’s all a matter of how you read the text. And remember, 28 percent of Americans take the Good Book as literal truth, talking snakes and jabbering donkeys and all. It’s not much of a jump to go from literal truth to literal application.
The Bible deluges us with a hailstorm of injunctions, far in excess of the Ten Commandments (first presented in Exodus 20:22-28, but also, with inexplicable alterations and sundry additions, in Exodus 34 and Deuteronomy 5). Aside from don’t kill, murder, or covet wives and asses, and so on, just what does the Bible ordain?
For starters, slavery. Much of Exodus 21 is basically a slaveholder’s manual and contains my opening line about boring through your Hebrew slave’s ear with an awl, which is what it says he deserves if he should fail to decamp on schedule. (Servitude is to last six years.) After departure, the slave’s wife and children belong, of course, to you, his master. If you need cash, feel free to sell your daughter as a sex slave. Beat and have sex with your slaves, but whatever you do, don’t “smite” their eyes or their teeth, or you’re obliged to free them. Remember, though, that Christ orders your slaves to obey you with “fear, trembling, and sincerity, as when [they] obey the Messiah” (Ephesians 6:5), so don’t spare the rod unnecessarily. Exodus (21:29) also warns you to keep your livestock in check. Don’t let your ox gore anyone, or you and the beast must be stoned to death. Do redeem the firstling of an ass with a lamb (whatever that means), but if you don’t, break the former’s neck. Otherwise, don’t “oppress” any “sojourners,” “vex” any strangers, or “afflict” any widows or “fatherless children.” Etcetera.
If believers require orders from some “holy” book to keep from doing these things, as those who claim our morality comes from God suppose, they should be kept off the streets, and certainly away from children.
When it comes to His earthly visiting quarters, the Lord legislates with lavish abandon, proffering binding instructions for ark-building, tabernacle-adornment, and altar-construction, on which His subjects are to scant nothing — not gold, not silver, not bronze. U.S. lawmakers chose to lighten the expense burden by providing churches with tax exemptions. Ancient Israelites found recompense in celestially sanctioned regional hegemony over the “Amorite, and the Canaanite, and the Hittite, and the Perizzite, and the Hivite, and the Jebusite” (Exodus 34). Israelites were divinely enjoined to “destroy their altars, break their images, and cut down their idol poles . . . . For I will cast out the nations before thee, and enlarge thy borders.” This criminal pronouncement from long ago inspires radical Jewish settlers today and helps maintain the insolubility of the Israeli-Palestinian impasse.
God then hits red-staters where it hurts, ordaining that “Ye shall not make any cuttings in your flesh for the dead, nor print any marks” — tattoos — “upon you: I am the LORD” (Leviticus 19:27). Brothers, no mullets: “Do not cut the hair at the sides of your head or clip off the edges of your beard” (Leviticus 19:27). Nevertheless, dress nattily: “Do not wear clothes of wool and linen woven together” (Deuteronomy 22:11). Sisters, betake yourselves to a nunnery — for clothes, if nothing else. “Women should adorn themselves modestly and sensibly in seemly apparel, not with braided hair or gold or pearls or costly attire” (l Timothy 2:9).
Before setting out to follow Jesus, remember to violate Commandment 5 and abhor your parents. “If anyone comes to me and does not hate father and mother, wife and children, brothers and sisters — yes, even their own life — such a person cannot be my disciple” (Luke 14:26). Do, however, abhor discreetly, for if you curse Mom and Dad aloud, they have the right to cut you down on the spot (Leviticus 20:9). Don’t talk with any wizards (ibid, 20:6) or get it on with your sister-in-law, or eat fat (ibid 3:17), or attend church for thirty-three days after birthing a boy (you’ll be unclean), or sixty-six days if it’s a girl, you’ll be doubly unclean (Ibid 12:4-5).
I could go on and on, but you get the point. Thomas Jefferson described “the Christian god [as] a being of terrific character — cruel, vindictive, capricious, and unjust.” In modern parlance, the Lord is psychotic, and stands in need of urgent psychiatric treatment for an out-of-control Type A personality, pathological solipsism and wanton sadism. It should surprise no one that damnable nonsense is His rule book’s warp and woof, with even the supposedly more humane New Testament deserving disdain as a farrago of “forgeries and lies” (to quote Thomas Paine). The Bible, in the end, merits mercilessly swift dispatch into the dustbin of history, or preservation as an anthropological curiosity, nothing more. Anyone considering it our wellspring of joy is not to be trusted.
So how is it that Chief Justice Moore suffers no opprobrium for saying that you “can’t help but be happy if you follow God’s law?”
Because we commit a sort of secular sin of omission and let him, either out of mistaken notions of politesse or the erroneous belief that criticizing religion as ideology equates with insulting someone personally. This has to stop. Every time we encounter faith-deranged individuals spouting supernatural nonsensicalities, we should request explanations and evidence. We might also cite the above-noted biblical passages and ask how they possibly square with modern life in a developed country. If they say those parts don’t apply nowadays, ask them which verses in the Bible permit them to so pick and choose. By steady, patient questioning, you will expose faith for what it is: finely crafted garbage.
We should not suffer evangelical fools gladly or allow them to determine the boundaries of discourse. We should take to heart the key maxim of British philosopher and mathematician William K. Clifford: “It is wrong, always, everywhere, and for anyone, to believe anything upon insufficient evidence.” We should point out that we have no problem with privately held religious beliefs, but we will protest and object to any attempt to impose such beliefs or restrictions deriving thereof on us or others.
Resist. You have a world of hard-won rights and secular sanity to preserve, and everything to lose.
By: Jeffrey Tayler, Contributing Editor at the Atlantic; Salon, May 31, 2015
“A Rare Victory For Black Voting Rights In The South”: SCOTUS, Individual Majority-Minority Districts Were Racially Gerrymandered
In 2010, Republicans gained control of the Alabama legislature for the first time in 136 years. The redistricting maps drawn by Republicans following the 2010 election preserved the thirty-five majority-minority districts in the Alabama legislature—represented overwhelmingly by black Democrats—and in some cases actually increased the number of minority voters in those districts.
For example, State Senator Quinton Ross, a black Democrat elected in 2002, represented a district in Montgomery that was 72 percent African-American before the redistricting process. His district was under-populated by 16,000 people, so the Alabama legislature moved 14,806 African-Americans and thirty-six whites into his seat. The new district was now over 75 percent black and excluded white neighborhoods that were previously in Ross’s district.
Republicans claimed they were merely complying with the Voting Rights Act. Black Democrats challenged the redistricting maps as an unconstitutional racial gerrymander and took the case to the Supreme Court. Today the Court, in a 5-4 decision written by Justice Breyer, sided with the black plaintiffs and ordered a district court in Alabama to reexamine whether specific districts, like Ross’s, were improperly drawn with race as the predominant factor. The decision was released, interestingly enough, on the same day as the fiftieth anniversary of the march from Selma to Montgomery.
“The record indicates that plaintiffs’ evidence and arguments embody the claim that individual majority-minority districts were racially gerrymandered, and those are the districts that the District Court must reconsider,” Breyer wrote. Section 5 of the Voting Rights Act (which the Supreme Court gutted in 2013, in another case from Alabama) did not compel the legislature to preserve the exact number of minority voters in a given district or inflate those numbers. “Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice,” Breyer said. The court’s majority—joined by Justice Kennedy—sympathized with the plaintiffs’ claim that Alabama’s interpretation of the VRA may “harm the very minority voters that Acts such as the Voting Rights Act sought to help.”
Justices Scalia and Thomas dissented. “We have somehow arrived at a place where the parties agree that Alabama’s legislative districts should be fine-tuned to achieve some ‘optimal’ result with respect to black voting power; the only disagreement is about what percentage of blacks should be placed in those optimized districts. This is nothing more than a fight over the ‘best’ racial quota,” wrote Thomas.
The ruling could have important ramifications, since the strategy followed by Alabama Republicans—packing minority voters into heavily Democratic seats in order to weaken white Democrats—was replicated throughout the South after the 2010 elections. I wrote about this trend in a 2012 feature for The Nation, “How the GOP Is Resegregating the South”:
In virtually every state in the South, at the Congressional and state level, Republicans—to protect and expand their gains in 2010—have increased the number of minority voters in majority-minority districts represented overwhelmingly by black Democrats while diluting the minority vote in swing or crossover districts held by white Democrats. “What’s uniform across the South is that Republicans are using race as a central basis in drawing districts for partisan advantage,” says Anita Earls, a prominent civil rights lawyer and executive director of the Durham-based Southern Coalition for Social Justice. “The bigger picture is to ultimately make the Democratic Party in the South be represented only by people of color.”
White Democrats have become the biggest casualty of the GOP’s new Southern strategy. As Jason Zengerle wrote in The New Republic, “Prior to the 2010 election, the Alabama House had sixty Democratic members, 34 of them white and 26 black. Afterward, there were 36 Democrats—ten white, 26 black. Meanwhile, in the Alabama Senate, the number of black Democrats remained seven, while the number of white Democrats fell from 13 to four.” After the 2014 election, there are now only seven white Democrats in the Alabama legislature—one in the Senate and six in the House.
There are no longer any white Democrats from the Deep South in Congress, following the defeat of Georgia Congressman John Barrow in 2014. Georgia Republicans moved 41,000 black Democrats out of his Savannah-based district to make him more vulnerable to a Republican challenge.
The elimination of white Democrats has also crippled the political aspirations of black Democrats. For years, black Democrats served in the majority with white Democrats in state legislatures across the South. Today Republicans control every legislative body in the South except for the Kentucky House. Before the 1994 elections, 99.5 percent of black Democrats served in the majority in Southern state legislatures. After the 2010 election, that number dropped to 4.8 percent, according to the Joint Center for Political and Economic Studies. “Black voters and elected officials have less influence now than at any time since the civil rights era,” the report found.
In the 1990s, some black Democrats formed an “unholy alliance” with white Republicans to create new majority-minority districts in the South. Republicans supported these districts for black Democrats in select urban and rural areas in exchange for an increased GOP presence elsewhere, especially in fast-growing metropolitan suburbs. With Democrats grouped in fewer areas, Republicans found it easier to target white Democrats for extinction.
But that unholy alliance ended after 2010, when black Democrats across the South, like Georgia Senate minority leader Stacey Abrams, denounced the GOP’s redistricting strategy. They found it especially ironic that Republicans were using the VRA as a rationale for marginalizing black voters while at the same time pushing the Supreme Court to gut the most important part of the VRA—the requirement that states with the worst history of voting discrimination, like Alabama, clear their voting changes with the federal government.
Even though Southern states like Alabama no longer have to have their redistricting maps approved by the federal government, the Court’s decision today could open the door for additional challenges to GOP-drawn racial gerrymanders in states like Virginia and North Carolina. “Today’s Alabama decision gives these challengers a new tool, making it harder for states to use compliance with the Voting Rights Act as a pretext to secure partisan advantage,” writes Rick Hasen.
It’s a modest victory, but perhaps the best that can be expected from the current Supreme Court.
By: Ari Berman, The Nation, March 26, 2015
“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country
Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.
Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?
A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.
The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.
In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.
Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.
Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.
A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.
You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.
Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.
The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.
Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.
By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014
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