The stench of the Roberts Court gets “stinkier!”
The judicial militia of the Republican Party made the news the other day. The militia, otherwise known as the majority of the Supreme Court of the United States (SCOTUS), reared its ugly, un-democratic head in a 5-4 decision stopping a lower court order requiring Alabama draw a new district voting map favorable to Black residents. The fourth dissenting vote was cast by conservative Chief Justice John Roberts, who joined the three Democratic-appointed justices in the minority. (If I was a betting man, I’d say that Roberts’ dissent had more to do with an attempt to preserve his legacy than what he really believes.)
At issue was a decision last month by a panel of three federal judges who threw out Alabama’s new congressional map, which included only one congressional district with a majority of Black voters even though Blacks make up more than a quarter of the state’s population.
The unanimous vote by the lower court panel ruled that a second district was necessary to comply with the Voting Rights Act.
You remember the Voting Rights Act (VRA). You know, the act passed in 1964, which Congress had extended for 25 years in 2006, but which in 2013, in Shelby County v. Holder, was decimated by the Roberts Court, which voted Section 5 unconstitutional.
A quick review. According to The Hill,
Section 5 required that nine, mostly Southern, states (including Alabama) and parts of seven other states in various sections of the country preclear with the U.S. Department of Justice (DOJ) any proposed change in voting requirements or practices. The preclearance requirement stemmed from those states’ and jurisdictions’ histories of voter discrimination, and it required them to demonstrate that their proposed changes did not have a racially discriminatory intent or effect. From 1970 to 2000, the DOJ, under Section 5, objected to nearly 1,000 changes proposed by covered jurisdictions. The DOJ blocked 31 proposed changes in 2006, the year the VRA was extended.
At the time, in a 5-4 ruling, Roberts writing for the majority in one of the more disingenuous recent SCOTUS arguments opined, “things have changed dramatically” since the VRA was first enacted. Roberts went on to argue that the changed circumstances meant that the time had come to end a remedy that strained the normal constitutional order.
In her dissent, Justice Ruth Bader Ginsburg characterized the majority’s opinion ending pre-clearance as being like “throwing away an umbrella in the middle of a rainstorm because you are not getting wet.”
RBG was right. Roberts was wrong.
Recently, Justice Sonia Sotomayor, in oral arguments regarding Mississippi’s anti-abortion legislation, wondered whether the Supreme Court as an institution could survive the “stench” from overturning 50 years of precedent of its Roe v. Wade decision. Many would argue that the “stench” began with the Roberts argument in the 2013 VRA decision.
By the way, that three-judge panel whose order was halted was composed of Judge Stanley Marcus from the U.S. Court of Appeals for the 11th Circuit, nominated by President Bill Clinton, and District Court Judges Anna M. Manasco and Terry F. Moorer, both chosen by President Donald Trump.
Conservative justices like to talk about Constitutional “originalism.” I’ve never understood that fascination. I mean it’s not like a few things haven’t changed since 1789.
It wasn’t until over 80 years later, in 1870, that the 15th Amendment, which stated that voting rights could not be “denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” was passed.
Unfortunately, it was left to states to determine the specific qualifications for suffrage. Southern state legislatures used such qualifications—including literacy tests, poll taxes and other discriminatory practices—to disenfranchise a majority of Black voters in the decades following Reconstruction.
WHICH IS WHY THE VOTING RIGHTS ACT WAS PASSED!
In systematically overturning voting rights that disproportionally disenfranchise minority voters, the Republican judicial militia seems to be doing whatever it can to go back, not to 1870, but to 1789.
So, what’s next to make things right? Passing the For the People Act or the John Lewis Voting Rights Act?
Don’t count on it.