Tag Archives: Voting Rights Act

The Imperial Supreme Court

The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake.  States will now be able to gerrymander at will without first subjecting their plans to federal oversight.  Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional.  And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise.  Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court.  That these changes might anger some and please others is nothing new either.  Controversy, after all, is something that often propels a case to the Supreme Court and  leads to its review by the justices, which is almost always at their discretion.  Not that debate should not be had on the cases that make it to the court.  But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of  the legal briefs on which the justices rely to make their decisions.  This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law.  This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional.  But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one.  It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology.  And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned.  As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy.  Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out.  Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all.  Not that we should get into the business of electing judges.  But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts.  No one should be made to suffer under an unjust law.  If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack.  But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”.  The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

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A Pictures Is Worth A Thousand Words (Or, If You’re Justice Sotomayor, More Than A Whole Slew of Statistics)

Today the Supreme Court hears oral arguments in the much-publicized case of Shelby County, Alabama v. Holder. Some have described the case as having the kind of ramifications for the Voting Rights Act that Citizens United had for campaign finance laws: law that was once settled and based on sound reasoning has now come under imminent threat of upheaval.

On Monday, Justice Sotomayor issued a “statement” in a case, Bongani Calhoun v. United States, No. 12-6142, involving the racist remarks of a federal prosecutor in Texas. The statement came as the Court declined to hear the case for mostly procedural considerations, but Justice Sotomayor felt it necessary to write separately so she could “dispel any doubt” that the Court’s decision “be understood to signal [the Court’s] tolerance of” the “racially charged remark.” “It should not,” Sotomayor bluntly stated. After taking the Government to task for its conduct, both with respect to the remarks and to the way it approached the case as it wound its way to the Court, Sotomayor ended her statement by warning or perhaps lamenting that she “hope[s] never to see a case like this again.” Only Justice Breyer joined Sotomayor in her statement.

That Sotomayor decided to issue such a statement at this particular time in the Court’s sitting is not, I submit, a coincidence. Instead, Sotomayor’s brief yet emphatic statement may have been her way of alerting her colleagues on the bench that now is not the time to be tinkering with or, worse yet, altogether scrapping the prophylactic measures that have been enacted to protect minorities from the kind of racism that, to Sotomayor, is as much a part of America as baseball, apple pie and barbecued ribs. And she did so in vivid almost picturesque fashion, none of which can really be captured in the raw data and statistics that will be thrust at the Court as it considers whether to overturn the Voting Rights Act, or at least a key part of it.

True, Sotomayor’s colleagues may decline to heed her warning or disagree with her view that things are still as they were back when Congress first passed, and then continued to renew, the Voting Rights Act. But even in pure temporal terms, we are only a mere 50 years removed from a time (1963; the Voting Rights Act was passed in 1965) when many thought that the country could not survive as a democracy without measures like the Voting Rights Act — a time when George Wallace, Alabama’s then Governor refused to de-segregate the University of Alabama, in direct defiance of President Kennedy and and a time when an owner of a segregated restaurant in Maryland felt fit to physically humiliate individuals who knelt in front of his restaurant to call attention to their message of integration. (These pictures are from a series of 50 photos taken in 1963 that was recently posted on the website for The Atlantic.) To argue that such racism, or more appropriately, its remnants has been purged from the fabric of this country is at best inaccurate and at worst irresponsible. Knowing that this view will probably not hold sway with the majority of the Court, however, my thoughts turn to those, like the Maryland protestors, who through their dedication and sacrifice helped put on the books laws like the Voting Rights Act, and without whom our country would be even more segregated than it was in 1963.