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“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

June 29, 2013 Posted by | Supreme Court, Voting Rights Act | , , , , , , , , | Leave a comment

“Political Whiplash”: On Gay Marriage, GOP Is Damned If the Court Does, And Damned If It Doesn’t

However the Supreme Court rules on the question of gay marriage, Prop 8, and the Defense of Marriage Act (or DOMA, as it’s widely known), the rapid shifts in how the country views same sex marriages is giving the GOP a case of political whiplash, as some leaders try to go with the flow and others scream “stop.”

On the one hand you have Karl Rove envisioning a pro-gay-marriage Republican presidential nominee in three years; on the other, you have former Arkansas governor Mike Huckabee predicting a cataclysmic split in the Republican Party if that happens. If Republicans do flip on gay marriage, Huckabee said last week, “they’re going to lose a large part of their base because evangelicals will take a walk.”

So the immediate question facing conservatives is what outcome they should be quietly rooting for when the Supreme Court hands down its decisions. I think Hot Air’s Allahpundit has it about right:

I’ve read a bunch of pieces lately claiming that SCOTUS striking down gay-marriage laws will actually be a gift to GOP politicians because it’ll take this issue off the table. Rubio and Paul and Jindal et al. won’t have to squirm over whether to endorse SSM, back a federalist approach to the issue, or oppose it on the merits. They can just shrug and say “The Court was wrong but whaddaya gonna do?” and move on to other business. Take it from Huckabee: That won’t happen. Abortion’s technically been “off the table” for 40 years and yet it’s still an absolute litmus test for any potential GOP nominee (and any potential Democratic nominee too).

He goes on to argue that the best case for Republicans is for the court to hold up Prop 8, allowing pols to oppose it but say it should be up to the states. (It’s a rule of politics that in most cases when federal candidates insist a tough issue be left up to the states, they’re trying to avoid pissing off an important constituency.) Note that the “best outcome” is still pretty bad for the GOP: Young voters, who overwhelmingly favor gay marriage, and—oh yeah—voted in greater numbers in 2012 than seniors, will see through a pol trying to play both sides of the issue.

It’s also worth noting here that the Roe parallel works, but only to a point. As Media Matters’s Lara Schwartz wrote yesterday, the notion that the 40-year-old decision polarized the issue is nonsensical. As Yale Law School’s Linda Greenhouse (who used to cover the court for the New York Times) and Reva Siegel relate, “To the question of whether one can avoid conflict over such issues by avoiding courts, the answer from an accurate pre-history of Roe v. Wade is: no. The abortion conflict escalated before the Supreme Court ruled.”


By: Robert Schlesinger, U. S. News and World Report, March 26, 2013

March 27, 2013 Posted by | Civil Rights, Marriage | , , , , , , , | Leave a comment


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