Parsing out which of the Supreme Court’s decisions has been the most terrible over the last week is yeoman’s work. While many Americans might not grab the pitchforks over the issue of class action arbitration, the Court continues to fluff the Chamber of Commerce with opinion after opinion.
Still, any tears that will be shed for the continued decimation of consumer and employee rights will be overwhelmed by those shed for the Voting Rights Act.
And it makes sense.
The 14th and 15th Amendments state that ‘Congress shall have the power to enforce’ voting rights and equal protection. In an effort to stem a century of voter discrimination, disenfranchisement and intimidation, Congress passed the Voting Rights Act in 1965 and has routinely reaffirmed it since. It was most recently reauthorized in 2006 by a combined 488-33 or 94 percent of Congress. This includes a 98-0 margin in the Senate. Even Mitch McConnell voted for it, though he might not remember.
Today, the Roberts Court struck down Section 4 of the Voting Rights Act and essentially neutered Section 5. Section 5 prohibits certain states and jurisdictions with histories of voting discrimination from enforcing changes to their election procedures until the changes have been reviewed by the U.S. Department of Justice (“DOJ”) or a federal court through a process called “preclearance.” Section 4 outlines who will be subject to the heightened standard.
I recommend reading Roberts’ opinion and Ginsburg’s ass-kicking dissent. Roberts, a longtime opponent of the VRA, uses circular logic and essentially determines, “Hey, there is no discrimination in these places anymore. huzzah! So even though these registration numbers may have improved as a result of the VRA, we deem the VRA is no longer needed. Also, there are black elected officials!” (Just like during Reconstruction before Rutherford B. Hayes’ controversial 1876 election resulted in the removal of federal troops, but I digress.)
Roberts concludes, “It’s on you, Congress, to determine a better formula because the South isn’t racist anymore.” (It is.) ”And good luck with that because you’re functioning at such a high level.”
Ginsburg’s dissent? “You’re full of shit. This is a well-established power in the purview of Congress. It says it right there!”
But does the Majority have a point? Ya know, why these states? I mean, the inexcusably long lines that disenfranchised hundreds-of-thousands of voters in 2012 were most notably in Florida and Ohio, two states not subject to preclearance.
Why? (1) Maybe there’s a lesson there. (2) Because of history. A dark and terrible history that shouldn’t be discounted. Also, under Section 4, it’s possible for these jurisdictions to exempt themselves from “special coverage” if they can demonstrate a 10-year record of not discriminating against minority voters. But disenfranchisement is so much fun! Who can go 10 whole years?
Before the ink was even dry, Texas, Mississippi and North Carolina were moving ahead with restrictive new voting laws. South Carolina’s Attorney General (and white guy) Alan Wilson lauded the Court:
“For nearly 50 years, Sections 4 and 5 have imposed an extraordinary intrusion into state sovereignty in certain states, including South Carolina,” Wilson said in a statement posted on the attorney general’s website. “Over time, great strides have been made and Sections 4 and 5 have become obsolete.
This is gonna end well.
I am neither a “Strict Constructionist” nor someone who whines about “Judicial Activism.” These are hollow labels anyway. At the appellate level, all judges are activists of varying shades. Each judge brings a specific background, worldview, and in some cases, interpretation to the bench. The term “judicial activism” is a pejorative the Right likes to throw around when it doesn’t agree with a Court’s decision.
But next time Scalia or any of these other conservative jags drop a “judicial restraint” or “activism” reference, feel free to call them on overturning a 50-year-old law rooted in direct Constitutional text and reauthorized by more than a 10-1 margin by our Legislative Branch on multiple occasions. It won’t take long. Could be
Update: It was today.
Scalia: “We have no power under the Constitution to invalidate this democratically adopted legislation.” [dissent in DOMA]