“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
“Discrimination Is Real”: Section 5 Is Still Crucial To Maintaining Americans’ Right to Vote
Alabama gave us the Voting Rights Act when it violently suppressed peaceful marches in 1965, dramatizing the need for a strong law guaranteeing every American an equal right to vote regardless of race. Now, less than 50 years later, an Alabama county is asking the U.S. Supreme Court to invalidate the central provision of that law—Section 5. The court should decline the invitation.
The Voting Rights Act is widely acknowledged as the most effective piece of civil rights legislation in American history. It was passed to make real the promise of political equality in the Declaration of Independence and the Constitution. Section 5 ensures state and local governments with a history of voting discrimination don’t implement new laws or practices that deny Americans the equal right to vote. Unfortunately, it is still sorely needed.
Our nation has made great progress toward racial equality since 1965. But discrimination is still real and distressingly widespread in jurisdictions covered by Section 5.
Leading up to the 2012 election, states passed a wave of restrictive laws that, had they gone into effect, would have made it harder for millions of eligible Americans to vote. These laws—which ranged from voter ID requirements to registration cutbacks to curbs on early voting —would have fallen most harshly on minorities.
Section 5 was critical in turning back the tide and stopping real discrimination. It blocked a discriminatory photo ID requirement in Texas, which required a kind of ID more than 600,000 eligible voters did not have. It required Florida to restore some early voting hours used especially by minority voters. And it blocked Texas redistricting maps after a federal court found they intentionally discriminated against Latino voters.
But Section 5 did much more: It deterred states from passing discriminatory laws in the first place. In South Carolina, lawmakers rejected a highly-restrictive voter ID requirement because they knew it wouldn’t pass muster. Instead, the state passed a law that was more flexible for the 216,000 registered citizens without driver’s licenses or nondriver’s IDs. A federal court approved the less restrictive version.
The last few years have seen some of the biggest fights over voting in decades. After an election marred by discriminatory voting laws and long lines in which minorities had to wait twice as long as whites, Section 5 of the Voting Rights Act is needed more than ever. Now is not the time to get rid of America’s most time-honored voting rights protection.
By: Wendy Weiser, Director of the Democracy Program at the Brennan Center for Justice at New York University School of Law, U.S. News and World Report, February 27, 2013
“Disenfranchisement Persists”: The Supreme Court Must Defend The Voting Rights Act
Today, the Supreme Court will hear oral arguments on Shelby County v. Holder, a case concerning the constitutionality of key provisions of the Voting Rights Act of 1965, a landmark law that outlawed discriminatory voting practices that disenfranchised African-Americans.
Shelby Country lies just south of Birmingham, Ala. One of its largest tourist attractions is the American Village, a nationally recognized citizenship education center whose mission is to teach visitors good citizenship and remind them of the price of liberty—that freedom isn’t free.
Shelby County wants the Supreme Court to declare a part of Section 4 and Section 5 of the Voting Rights Act unconstitutional. Section 4b codifies a formula to identify parts of the country where political discrimination based on race is high. Section 5 requires the Justice Department to “preclear” any changes to voting rules made in nine states, mostly in the South, and by areas in seven others.
The justices will consider an ultimate constitutional question: Does voter discrimination persist to the point where legal protections must remain in place to prevent it? The question, of course is rhetorical. It does. We only need to look at the long list of recent state-level legislative activity, both in and out of the South, that targets minority voters. Just in the last decade, lawmakers have broken up majority-minority districts with questionable redistricting practices. African-American and Latino voters have seen their names purged from voter lists under the guise that election officials were cleaning them up, and restrictive voter ID laws implemented. Laws, some argue, are the modern day equivalent of poll taxes.
If today was the opposite day, Shelby County’s case would have merit. They’d rightly argue that voting rights are color-blind. But it isn’t the opposite day, nor will that be the case for a long time to come. Shelby County ignores this fact. It forgets about Alabama’s long history of using violence fraud, poll taxes, and literacy tests to keep African-American’s from the polls.
The justices must avoid the same amnesia. In 2006, the House of Representatives voted 390-to-33 and the Senate 98-to-zero to renew the Voting Rights Act until 2031. These lawmakers, after a significant amount of testimony and impassioned debate, recognized that the threat of disenfranchisement persists. Some of the justices, however, have already signaled that it doesn’t. Justice Anthony Kennedy has questioned the fairness of the Voting Rights Act, and Justice Clarence Thomas has said flat out said that it’s unconstitutional.
Shelby County v. Holder targets the very heart of American democracy. If the justices rule in Shelby County’s favor, the right to vote will most certainly not be free. The American Village will have one more reminder to give its visitors.
By: Jamie Chandler, U. S. News and World Report, February 27, 2013
“Just Too Many Guns”: The Terrorist Next Door To Me
Well, not quite next door. This fellow lives about three miles west of me in Rockland County, straight out Route 59 in the strip mall paradise of Nanuet, New York. A local news outlet charted his arrest, essentially on domestic terrorism charges, after making threats against various Democrats (Cuomo and Pelosi and Reid and Schumer and members of the Black Caucus, of course) and saying followers of Obama are traitors and should die.
This fine specimen of a human American, one Lawrence Mulqueen, is a follower of the right-wing Sovereign nation. He’s a veteran drunk driver with felonies in several locales, but still managed to illegally assemble an arsenal (see below). On his Facebook page he reportedly wrote, “I cannot wait to start killing the scum.… I want these scumbags DEAD!!!…. Death to them all.” Them being only Democrats and Obama fans.
When Mulqueen was taken into custody, with FBI and Secret Service help, the raid on the home found body armor, weapons and ammunition including (in the local news outlet’s list):
1 10.62×54 Bolt Action Rifle
1 Remington 35 Pump Action Rifle loaded with 6 rounds
1 Bulletproof Body Armor
Approximately 100 rounds of Ammunition, including 27 rounds of .50 caliber armor piercing bullets (tank buster)
2 Rifle bayonets
1 Rifle Scope
1 Sword
1 Metal Knuckle Knife
And the Sovereign Citizens Movement means business. The Southern Poverty Law Center (SPLC) estimates that approximately 100,000 Americans are “hard-core sovereign believers” with another 200,000 “just starting out by testing sovereign techniques for resisting everything from speeding tickets to drug charges.” The National Security Law Brief points out: “Both Terry Nichols, a co-conspirator in the 1995 Oklahoma City bombing, and Joe Stack, who in 2010 flew his plane into an IRS office in Austin, Texas, identified with the movement.”
Now, how have other media outlets covered it? From a CBS local site:
“I think what may have particularly gotten his ire in the past month or two were the various legislation enacted with respect to the rights to possess a firearm. I think that was particularly upsetting to him,” Sgt. Cummings told 1010 WINS. “One posting which was posted about a month ago said that if anybody ever came to take the arms, they would suffer the consequences.”
So far, no national media have picked this up, but they should: Mulqueen is a poster child not only for the rise of militia-like groups, right-wing paranoia and racism, but also the ease with which crazies and felons can not only get and keep their hands on one gun, but assemble a collection, along with deadly ammo.
By: Greg Mitchell, The Nation, February 22, 2013
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