“It Will Be Easy To Replace Antonin Scalia”: In Terms Of Quality In A Supreme Court Justice, He Will Be Easy To Replace
Antonin Scalia’s unexpected death came as a shock to me—and not just because I had plans until recently to go hiking this weekend in Big Bend, Texas, where the justice died. Scalia has been a fixture on the Supreme Court for my entire legal career, and he didn’t seem to be going anywhere. During Barack Obama’s presidency, he hunkered down: no way would a Democrat appoint his successor. The right adored him as much as the left reviled him. He was the Court’s most colorful personality since William “Wild Bill” Douglas retired in 1975. Scalia’s family will miss him, and they are surely hurting right now. They have my sympathies. But as the tributes roll in and Scalia’s impact on the Court comes into focus, I predict a consensus will emerge that he has damaged the institution he served for so many years.
It is ironic that Scalia died during this particular presidential campaign, because he strongly resembled two leading Republican hopefuls: Donald Trump and Ted Cruz. Like Trump, Scalia was larger than life. He took his elbows with him wherever he went. The more outrageous his rhetoric, the more his fans lapped it up. Scalia trashed his colleagues’ writing, calling it “preposterous” and compared it to “the mystical aphorisms of the fortune cookie”; their reasoning was “patently incorrect” and “transparently false.” With his low punches and salty talk, Scalia coarsened the Court—just as Trump has coarsened the presidency. As the much more restrained John Paul Stevens said to one of Scalia’s biographers, “I think everybody respects Nino’s ability and his style and all the rest. But everybody on the Court from time to time has thought he was unwise to take such an extreme position, both in tone and in the position.”
Like Ted Cruz, Scalia possessed a rare intellect. (Cruz, a former Supreme Court law clerk and appellate lawyer, was a big fan.) Scalia was for a time the Court’s most persuasive voice on technical matters like jurisdiction and procedure. He was an unquestionably talented writer. No justice had a quicker wit. Yet, also like Cruz, Scalia proved ineffective within the constraints of an organization, where cooperation and pragmatism tend to produce results. His strident behavior alienated the people around him. “Screams!” wrote Justice Harry Blackmun on a draft Scalia dissent in 1988. “Without the screaming, it could have been said in about 10 pages.” When a very junior Scalia commandeered an oral argument in 1987, Justice Lewis Powell whispered to a colleague on the bench, “Do you think he knows that the rest of us are here?” Scalia seemed to make a special point of picking on Anthony Kennedy, the Court’s swing voter for the past ten years, and an essential member of any 5-4 coalition. His inability to hold his fire or to build consensus meant that he was assigned few important majority decisions in the later years of his career.
I will remember Scalia mainly for the ugliness that permeated his opinions. He once wrote with astonishing callousness that it is not unconstitutional to execute an innocent person if that person has received a fair trial. He described affirmative action as “racial discrimination,” and mocked the notion that it could help students achieve “cross-racial understanding.” (No one squeezed more sarcasm out of a quotation mark.) A devout Roman Catholic, Scalia harbored a particular scorn for “the homosexual agenda,” writing in a paper-thin third-person: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”
Scalia had been slipping lately. He made a spectacle of himself before journalists, flipping his chin at them and giving needlessly provocative speeches. He openly flouted the Court’s recusal traditions, going on a hunting trip with Dick Cheney and then refusing to recuse himself from a suit against the vice president. He engaged in an unseemly public spat with Judge Richard Posner, going so far as to call Posner a liar after Posner panned Scalia’s latest book. The invective in his opinions and his behavior at oral argument had become truly outrageous, and caused many a citizen to associate the Supreme Court with cheap partisan point-scoring. It has been a long fall for what had been one of the most trusted institutions in government.
Scalia was a character, and he will be hard to forget. But in terms of quality in a Supreme Court justice, he will be easy to replace.
By: Michael McDonnell, Contributor, Ten Miles Square, The Washington Monthly, February 14, 2016
“Don’t Let Them Silence You: Vote, Dammit”: The Way We All Become Equal On Election Day Is That We Cast That Ballot
Our country’s oldest and longest struggle has been to enlarge democracy by making it possible for more and more people to be treated equally at the polls. The right to participate in choosing our representatives – to vote — is the very right that inflamed the American colonies and marched us toward revolution and independence.
So it’s unbelievable and frankly outrageous that in the last four years, close to half the states in this country have passed laws to make it harder for people to vote. But it’s true.
But don’t stop there. Engage, and start the conversation of democracy where you live — in your apartment complex, on your block, in your neighborhood. There is always at least one kindred spirit within reach to launch the conversation. Build on it.
As this country began, only white men of property could vote, but over time and with agitation and conflict, the franchise spread regardless of income, color or gender. In the seventies, we managed to lower the voting age to 18. Yet a new nationwide effort to suppress the vote, nurtured by fear and fierce resistance to inevitable demographic change, has hammered the United States.
And this must be said, because it’s true: While it once was Democrats who used the poll tax, literacy tests and outright intimidation to keep Black people from voting, today, in state after state, it is the Republican Party working the levers of suppression. It’s as if their DNA demands it. Here’s what Paul Weyrich, one of the founding fathers of the conservative movement, said back in 1980: “I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact our leverage in the elections quite candidly goes up as the voting populace goes down.”
So the right has become relentless, trying every trick to keep certain people from voting. And conservative control of the Supreme Court gives them a leg up. Last year’s decision – Shelby County v. Holder – revoked an essential provision of the 1965 Voting Rights Act, and that has only upped the ante, encouraging many Republican state legislators to impose restrictive voter ID laws, as well as work further to gerrymander Congressional districts and limit voting hours and registration. In the past few weeks, the Supreme Court has dealt with voting rights cases in Texas, Wisconsin, North Carolina and Ohio and upheld suppression in three of them, denying the vote to hundreds of thousands of Americans. As Justice Ruth Bader Ginsburg wrote in opposition, “The greatest threat to public confidence… is the prospect of enforcing a purposefully discriminating law.”
The right’s rationale is that people — those people — are manipulating the system to cheat and throw elections. But rarely – meaning almost never — can they offer any proof of anyone, anywhere, showing up at the polling place and trying illegally to cast a ballot. Their argument was knocked further on its head just recently when one of the most respected conservative judges on the bench, Richard Posner of the US Court of Appeals for the Seventh Circuit in Chicago, wrote a blistering dissent on the legality of a Wisconsin voter ID law. “As there is no evidence that voter-impersonation fraud is a problem,” Posner declared, “how can the fact that a legislature says it’s a problem turn it into one? If the Wisconsin legislature says witches are a problem, shall Wisconsin courts be permitted to conduct witch trials?”
The real reason for the laws is to lower turnout, to hold onto power by keeping those who are in opposition from exercising their solemn right — to make it hard for minorities, poor folks, and students, among others, to participate in democracy’s most cherished act.
And you wonder why so many feel disconnected and disaffected? Forces in this country don’t want people to vote at the precise moment when turnout already is at a low, when what we really should be doing is making certain that young people are handed their voter registration card the moment they get a driver’s license, graduate from high school, arrive at college or register at Selective Service.
In a conversation for this week’s edition of Moyers & Company, The Nation magazine’s Ari Berman put it this way: “This is an example of trying to give the most powerful people in the country, the wealthiest, the most connected people, more power. Because the more people that vote, the less power the special interests have. If you can restrict the number of people who participate, it’s a lot easier to rig the political system.” And Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, noted, “For people who don’t have the power to engage in terms of money in the political process, the way we all become equal on Election Day is that we cast that ballot… [So] it’s not just about corporate interests. It is about power. And it is about trying to suppress the voice of those who are the most marginalized.”
So vote, dammit. It is, as President Lyndon Johnson said when he signed the Voting Rights Act, “the most powerful instrument ever devised by man for breaking down injustice.” But don’t stop there. Engage, and start the conversation of democracy where you live — in your apartment complex, on your block, in your neighborhood. There is always at least one kindred spirit within reach to launch the conversation. Build on it. Like the founders, launch a Committee of Correspondence and keep it active. Show up when your elected officials hold town meetings. Make a noise and don’t stop howling. Robert LaFollette said democracy is a life, and involves constant struggle. So be it.
By; Bill Moyers and Michael Winship; Moyers and Company, Bill Moyers Blog, October 24, 2014
“Another Long And Ignoble Tradition”: Why The Supreme Court Is Allowing Texas To Hold An Unconstitutional Election
This weekend, the Supreme Court allowed Texas to apply new, stringent voting restrictions to the upcoming midterm elections, which could potentially disenfranchise hundreds of thousands of voters lacking proper identification. As Justice Ruth Bader Ginsburg explained in a short but brilliant dissent, this is a disaster for the citizens of Texas: the upcoming elections will be conducted under a statute that is unconstitutional on multiple levels.
How could this happen?
There is, admittedly, a quasi-defensible reason for the court’s latest move. The Supreme Court is usually reluctant to issue opinions that would change election rules when a vote is imminent. For example, the court recently acted to prevent Wisconsin from using its new voter ID law in the upcoming midterms, coming to the opposite result from the Texas case. That is the principle at work here, and on a superficial level it makes sense.
But as Ginsburg — joined by Justices Elena Kagan and Sonia Sotomayor — points out, the general reluctance to change election rules at the last minute is not absolute. In Wisconsin, using the new law would have created chaos. For example, absentee ballots would not have indicated that identification was necessary for a vote to count, so many Wisconsin voters would have unknowingly sent in illegal ballots.
In the Texas case, conversely, there is little reason to believe that restoring the rules that prevailed before the legislature’s Senate Bill 14 would have been disruptive. “In all likelihood,” the dissent observes, “Texas’ poll workers are at least as familiar with Texas’ pre-Senate Bill 14 procedures as they are with the new law’s requirements.”
And more importantly, some risk of disruption is a price worth paying to prevent an election from being conducted under unconstitutional rules. The Texas statute, which is extreme even by the standards of contemporary Republican vote-suppression efforts, is not remotely constitutional.
The Texas law has all the defects of every law that requires photo ID to vote. You don’t have to take my word for it — you can read the recent tour de force opinion of the idiosyncratic, immensely influential Judge Richard Posner of the Court of Appeals for the Seventh Circuit in Chicago. Posner initially wrote an important opinion upholding an Indiana voter ID law, which was ultimately upheld by the Supreme Court. But last week, he concluded based on new evidence that the laws are “a mere fig leaf for efforts to disenfranchise voters likely to vote for the political party that does not control the state government.”
The fundamental problem with the ID requirements is that they are a bad solution to a non-existent problem. Not only is voter impersonation exceedingly rare, even in theory it would be impossible to steal an election by having large numbers of people pretend they are other voters. Election thefts are accomplished by manipulating vote counts or manufacturing fake votes after the fact, not by having an army of impostors cast votes!
The costs in vote suppression, however, are real, and since voter ID laws don’t accomplish anything, even miniscule costs cannot be worth it.
But the Texas law is much worse than typical voter ID laws. As the Ginsburg dissent explains, “[I]t was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result,” and hence violates the Voting Rights Act (and, presumably, the Fourteenth Amendment). All voter ID laws are discriminatory in effect, but Texas public officials made little effort to hide the extent to which the laws were intended to suppress the minority vote to protect Republican incumbents from demographic change. Indeed, the only reason the law was able to go into effect in the first place was the Supreme Court’s notoriously shoddy 2013 opinion gutting the Voting Rights Act.
In and of itself, this should be enough to prevent the law from going into effect. But the legal deficiencies of Texas’ election law do not end there. None of the forms of ID required by the statute are available for free. As the dissenters note, the costs are not necessarily trivial: “A voter whose birth certificate lists her maiden name or misstates her date of birth,” Ginsburg explains, “may be charged $37 for the amended certificate she needs to obtain a qualifying ID.”
Texas is simply not constitutionally permitted to do this. The Twenty-Fourth Amendment forbids poll taxes, and the Supreme Court held in 1966 that “a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard.”
The fact that Texas’ law is unconstitutional twice over — both by being racially discriminatory and imposing a direct cost on voting — is not a coincidence. Even after racial discrimination in voting was made illegal by the Fifteenth Amendment, for nearly a century states were able to use formally race-neutral measures like poll taxes and literacy tests to disenfranchise minority voters. The Texas law is very much part of this long and ignoble tradition.
Unfortunately, the Supreme Court’s decisions in 2013 and 2014 allowing the Texas law to go into effect are part of another long and ignoble tradition: the Supreme Court collaborating with state governments to suppress the vote rather than protecting minorities against discrimination. As long as Republican nominees control the Supreme Court, this problem is likely to get worse before it gets better.
By: Scott Lemieux, Professor of Political Science at the College of Saint Rose in Albany, N.Y; The Week, October 20, 2014
“Let’s Not Beat Around The Bush”: Voter ID Laws Have But One Intent, To Limit The Franchise
Belatedly, federal Judge Richard Posner has arrived at the obvious conclusion about voter identification laws: They are enacted as a barrier to the franchise, an un-American tactic hatched by conservatives to prevent certain people from voting. It’s too bad that his epiphany came so late.
Posner is one of the nation’s most respected conservative jurists. As a judge on the U.S. Court of Appeals for the 7th Circuit, he might have led the nation’s highest court to reject new restrictions around voting. Instead, in 2007, Posner wrote the majority opinion that upheld Indiana’s stringent law, setting the stage for the U.S. Supreme Court to reason that it did no harm to an unfettered franchise.
That was quite wrong, as Posner now acknowledges. While he disavowed his earlier endorsement of the law in a new book, Reflections of Judging, he went further in a video interview earlier this month with The Huffington Post, saying that the dissenting view was the right one.
In that dissent, the late Judge Terence Evans wrote: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic.” That about sums it up.
Still, I see in Posner’s late-arriving epiphany occasion for hope that debates about obstacles to voting, which have proliferated in states controlled by Republicans, will now proceed with more intellectual honesty. Let’s give up the preposterous justification that the barrage of new restrictions around the franchise — regulations that include limits on early voting — are intended to prevent voter fraud.
Recently, the consequences of those restrictions have been clear in Texas, which was among the states that rolled out new measures after the U.S. Supreme Court decimated the Voting Rights Act earlier this year. (Posner has had interesting comments about that decision too, dismissing its intellectual and legal foundations as non-existent. “The opinion rests on air,” he wrote.)
Eighty-four-year-old Dorothy Card, a Texas resident, has voted for six decades, but she stopped driving 15 years ago and doesn’t have a driver’s license, the ID preferred in voter-suppression states. By late last month, she had tried three times to obtain an ID that would allow her to vote in November elections, according to Think Progress, a left-leaning political blog. Her daughter said she would keep trying but with little expectation of success since each attempt required a different set of documents.
But perhaps the case that poses the biggest challenge for the Texas voter-suppression camp concerns a sitting judge, Sandra Watts. She was nearly barred from voting earlier this month because her name is listed slightly differently on her driver’s license than on voter registration rolls. Her driver’s license lists her maiden name as her middle name, while the voter registration roll lists her real middle name. As a consequence, she was told she’d have to vote using a provisional ballot, which would be checked to assure her identity.
As she told a Texas TV station, it’s not unusual for a married woman to condense her name by putting her maiden name in the middle. “I don’t think most women know that this is going to create a problem. That their maiden name is on their driver’s license, which was mandated in 1964 when I got married …” she said.
Meanwhile, there are no — zip, zilch, zero — comparable stories of fraud prevented by the new laws. Perhaps that’s because in-person fraudulent voting of the sort the new laws ostensibly prevent is virtually non-existent. Analyses have consistently shown that voter fraud is much more likely to occur through absentee ballots, which the voter-suppression crowd have usually ignored.
Here’s the not-so-hidden agenda behind voter ID laws: blocking the franchise for voters who lean toward Democrats. Those voters can be found easily enough among poorer blacks and Latinos, who tend to be less likely to own cars and to have driver’s licenses. Target them, and you can shave off several hundred or a few thousand votes — enough to win a close election.
That’s what Republicans are up to. Let’s hope Posner’s acknowledgment might at least spark more honesty about their motives.
By: Cynthia Tucker, The National Memo, October 26, 2013
“A Failure Of Democracy”: Judge Richard Posner’s Unforced Error On Voter ID And Non-Existent Voter Fraud
Two weeks ago, Richard Posner, one of the most respected and iconoclastic federal judges in the country, startled the legal world by publicly stating that he’d made a mistake in voting to uphold a 2005 voter-ID law out of Indiana, and that if he had properly understood the abuse of such laws, the case “would have been decided differently.”
For the past ten days, the debate over Judge Posner’s comments has raged on, even drawing a response from a former Supreme Court justice.
The law in question requires voters to show a photo ID at the polls as a means of preventing voter fraud. Opponents sued, saying it would disenfranchise those Indianans without photo IDs — most of whom were poor, elderly, or minorities. State officials said the law was necessary, even though no one had ever been prosecuted for voter fraud in Indiana.
Judge Posner claimed, during an Oct. 11 interview with HuffPost Live, that at the time of the ruling, he “did not have enough information … about the abuse of voter identification laws” to strike down the Indiana statute. But he also said the dissenting judge on the panel, Terence Evans, had gotten it “right” when he wrote that the law was “a not-too-thinly-veiled attempt to discourage election-day turnout” by certain voters who tended to vote Democratic. (It was passed on a straight party-line vote by a Republican-controlled legislature.)
Last Thursday, former Supreme Court Justice John Paul Stevens sounded several of the same notes, telling the Wall Street Journal that while he “isn’t a fan of voter ID,” his own 2008 opinion upholding Judge Posner’s ruling was correct — given the information available at the time. Incidentally, Justice David Souter dissented for roughly the same reasons as Judge Evans, and Justice Stevens now says that “as a matter of history,” Justice Souter “was dead right.”
But all the judges had the same record in front of them at the time. So what information did the dissenters rely on that Judge Posner and Justice Stevens did not? That’s the question raised in a smart critique by Paul M. Smith, who argued the plaintiffs’ case before the Supreme Court.
Mr. Smith pointed out that there was never any doubt the law would make voting harder for potentially tens of thousands of voters, and that the plaintiffs submitted numerous affidavits from voters who explained how they would be harmed by the law. Even if the actual number was lower, it was certainly higher than zero, which is the number of voter-fraud incidents recorded in Indiana when the law was enacted.
In other words, both the Seventh Circuit and the Supreme Court got the balance of burdens wrong, as Indiana University law professor Fran Quigley rightly noted. Given that voting is a fundamental right, Quigley wrote, “the burden should have been on the State of Indiana to prove the law was necessary, not the challengers to prove how it would trigger abuse.”
Judge Evans put it more pungently in his 2007 dissent, saying the law was effectively using “a sledgehammer to hit either a real or imaginary fly on a glass coffee table.”
Rather than acknowledge this reality, Judge Posner’s original opinion dismissed the importance of the voters’ claims, contending that since no election gets decided by a single vote, the “benefits of voting to the individual voter are elusive.”
That bizarre logic suggests that the judge’s problem was not a lack of information, but what former White House counsel Bob Bauer called “a failure of democratic imagination.”
Particularly in light of the Supreme Court’s decision in June gutting the Voting Rights Act, it would be nice if Judge Posner extended his fuller understanding of the true nature of voter-ID laws to his legal opinions, and not simply to online interviews.
By: Jesse Wegman, Editors Blog, The New York Times, October 22, 2013
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