Courting Jim Crow

The US Supreme Court is gearing up for another outrageous decision – to consider striking down the Voting Rights Act.

As part of its multifaceted attack on voting rights, the Florida GOP passed a law severely limiting early voting [EPA]

The US Supreme Court might seem to have a very strange sense of timing. Just three days after one of the most publicly screwed up elections in recent memory – some folks didn’t get to vote till after midnight – they want to take a crack at making things even worse. More specifically, the Court decided to hear a case that could cripple federal voter protection, giving even more free reign to the circus freaks of state and local officialdom who’ve just finished making America look like an embarrassing parody of a Third World nation. 

Yes, we all know that conservative Republicans control the Court. And yes, we also know that minorities overwhelmingly vote Democratic. So it’s not much of a surprise that they might not like a law protecting minority voting rights. But aren’t they supposed to hide this sort of thing? Aren’t they supposed to be at least a little bit discrete? 

In a word: No. Not actually. Not anymore. Welcome to the post-post-racial world of today’s Republican Party, and its favourite stomping ground, as far removed from voters and reality as it’s possible to get. 

In the real world, the long lines on election day – and for days leading up to it where early voting was allowed by law, but hated by local officials – were not just some random occurrence. They were vivid indications of a much deeper systemic illness, combining a long legacy of unequal power which keeps large numbers of low-income, young and minority voters away from the polls with a much more recent deliberate push over the last decade – and especially since the 2010 mid-terms – to make it even harder for these Americans to vote.  

This push has taken various different forms – voter-ID laws, restrictions on voter registration and early voting, the use of caging and related techniques to generate error-prone challenge lists, and the organisation of intentionally misinformed volunteers to harass and intimidate voters at the polls are some of the most prominent of them. But the long lines on election day stand in as a fitting symbol for all of them, since they vividly convey both the result – how hard voting is made for people who usually have precious little time to spare – and the resolve that’s necessary not to have their rights denied. 

New voter-ID laws

None of this seems to have penetrated the highest court in the land, however. One tool that’s been most effective in preserving voting rights this year is the Voting Rights Act of 1965, which has reauthorised repeatedly ever since. For example, in early October, federal judges blocked new voter-ID laws from going into effect in South Carolina and Mississippi, both states that require what’s known as “pre-clearance” from the Department of Justice under Section 5 of the VRA before implementing changes that can impact minority voting rights.  

In the South Carolina case, both sides agreed that almost 130,000 voters in the state lacked the ID required by the new law – most of them people of colour. This fact was noted by US District Judge Collen Kollar-Kotelly in her concurring opinion. Kollar-Kotelly is a bipartisan figure, who has received major appointments by Ronald Reagan, Bill Clinton and William Rehnquist. She credited the importance of the Voting Rights Act in her opinion, writing

“One cannot doubt the vital function that Section 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive.” 

Another example concerns Florida and its cut-back in early voting, which minority voters have found particularly attractive. As part of its multifaceted attack on voting rights, the Florida GOP passed a law severely limiting early voting. But several large counties in Florida are covered by Section 5 of the Voting Rights Act and so voters there brought suit to block the law in their counties – which a three-judge federal court did last August, ruling that minorities “will be disproportionately affected by the changes in early voting procedures because they disproportionately use early in-person voting”. 

Voting in Florida was still a mess. But it would have been much, much worse without the Voting Rights Act. Lines would have been much longer for many more people, and many more people would not even have voted at all. So, naturally, conservatives on the Supreme Court are just itching to overturn it. 

The case they’ve chosen to hear is Shelby County vs Holder. Summarising the facts of the case in a June 2010 press release, the ACLU explained

In 2006, without obtaining federal preclearance, the city of Calera in Shelby County held city council elections after conducting nearly 200 annexations and redrawing its city council districts. The redistricting eliminated the only district that gave African-American voters the opportunity to elect a candidate of their choice. In the subsequent elections, Councilman Ernest Montgomery, the second African-American in the history of Calera to become a member of the city council, lost his seat.

After the changes were challenged by the US Department of Justice under Section 5, Calera was required to redo its discriminatory redistricting plan so that it would not dilute the minority vote and to conduct new elections. Under the remedial plans, Montgomery regained his seat. 

The argument being advanced is that the South has changed and the treatment prescribed under the Voting Rights Act is no longer necessary. But the very facts of the Shelby County case show just the opposite – the only reason they’re in court is precisely because they continue to suppress black voting rights, and the Voting Rights Act is the first line of defence against that. The subtext here is the exact opposite of the overt argument: We elected one jigaboo, why do we have to do anything more? 

‘Judicial deference’

There can be no doubt that the South has changed in many ways, but sometimes, crucially, the more things change, the more they stay the same. So it long has been with race and voting throughout much of the South. In fact, the complicated and often elusive ways that things have changed is precisely why Section 5 exists in the first place. As Lyle Denniston explained on SCOTUS blog in early September: 

“Nearly a half-century ago, Congress decided that the government could not end racial discrimination in voting simply by suing one state, county, or city at a time, because officials who were determined to keep minorities away from the polls were quickly shifting to new tactics. The only way to keep ahead of those tactics, Congress decided, was to bar the worst offenders among state and local governments from adopting any new election laws until they had first proved they would not discriminate. That was a massive shift in policy, and it worked: the law that Congress passed in 1965, the Voting Rights Act, is now widely credited as the most effective civil rights law in American history; even the Supreme Court has said so.” 

Now the Supreme Court wants to use that success to argue that the law is no longer needed. But each time it’s been reauthorised – most recently in 2006 – there has been a whole new round of fact-finding about continuing practices and problems, resulting in a massive legislative record.

This is one of the hallmarks of legislative lawmaking and one of the core reasons judges are supposed to substantially defer to legislatures: they are much better suited to relying on extensive factual investigations that go beyond the sort of fact-finding involved in individual cases. In commenting on the appeals court decision uphoding the Voting Rights Act last May, David H Gans wrote

“Discussing the 15,000-page legislative record developed by Congress, the panel concluded that racial discrimination in voting still plagues those jurisdictions -predominantly in the South – covered by the preclearance requirement. Judge Tatel’s opinion discussed a number of intentionally discriminatory practices – overt hostility to African American voting power by state officials, redistricting decisions made on the basis of race, closing or relocating polling places and even cancelling elections to deprive African Americans of the right to vote – that still persist in jurisdictions covered by the Act. The court held that Congress had acted within its broad authority in concluding that preclearance was still necessary to ensure protection for the right to vote free from racial discrimination. After thoroughly scrutinizing the record and given that overt racial discrimination persists in covered jurisdictions notwithstanding decades of section 5 preclearance, we … are satisfied that Congress’ judgment deserves judicial deference.”

“Judicial deference.” That’s another way of saying “judicial restraint”, the exact opposite of judicial activism, which conservatives are supposed to hate. But it’s really only liberal judicial activism that they don’t like. Conservative judicial activism is just fine – which is why the Supreme Court is looking to overturn the Voting Rights Act in the first place. 


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In fact, conservatives have dominated the judiciary for over three decades now. Ever since Reagan took office in 1981, every single Supreme Court appointee has been at least as conservative as the justice they’ve replaced – and most have been noticeably more conservative. This is not an accident – it’s all been very well planned. And part of that plan is a public rationale that easily be sold to low information voters.

Liberals, we are told, just make things up. They “legislate from the bench”. But conservatives “apply the Constitution (or the law) as it was written”. There are other themes or variations, but that’s been the main thrust for decades now, with roots going all the back to the earliest reactions to Brown vs Board of Education in 1954. 

Judicial interpretation

What’s surprising is how little scrutiny this rationale has received over the years, particularly given how obviously bogus it is. Put simply, judges can’t “apply the Constitution as it was written”, because the very notion of doing so is incoherent. The Constitution is a broadly-written document, intentionally so. It was not meant to be a narrowly-tailored instruction manual. The framers knew that such a document would quickly age and become more of an impediment than a boon. So they wrote broadly, and left room for future generations to fill in the details – both in terms of custom and in terms of judicial interpretation.

This brings us to a second fundamental problem with the conservative rationale: Let’s not forget, judicial interpretation – “judicial lawmaking” if you will – has been around a lot longer, more continuously, than elected lawmakers have. Judicial interpretation is the central engine of Anglo-American common law, with roots going all the way back to Roman common law, and the Constitution is a document within the common law tradition – it made no attempt to alter or abolish that tradition.

What has kept judicial interpretation restrained across all these years within the common law tradition is that judges only decide the cases before them, and they take note of judicial precedent – how other judges have ruled before them in similar cases.  

This brings us to a third problem with the conservative rationale: conservatives actually do engage in judicial activism, and two of the most telling ways they do so is by going well beyond the cases before them and by ignoring precedent – or often just twisting it to mean whatever they like. Bush vs Gore and Citizens United were both quite typical in this regard.

Citizens United overturned 100 years of precedent in campaign finance law and did so by rewriting the case before it – or rather, by telling the parties involved to rewrite their arguments to address a different, much broader question than the suit itself originally brought. Thus, it was an activist decision by both standards.

Bush vs Gore was a much messier case, much more difficult to quickly characterise. Yet, it was clearly a unique instance in American history, with the Supreme Court involving itself in the very heart of the political process – something American courts are traditionally extremely loath to do. Violating that tradition clearly marked the decision as activist in flashing red lights. Indeed, before Bush vs Gore went to the Supreme Court, most observers thought the Court would never take the case. There was simply no reason to.

For one thing, it was first and foremost a matter of state election law, which Florida’s Supreme Court was well acquainted with, in sharp contrast to the US Supreme Court, which knows virtually nothing about it. Second, as messy as the situation was, Congress had written a law more than a century earlier precisely to deal with this sort of situation, a result of the last time something similar happened, in the election of 1876. Third, Bush had no standing to sue regarding the rights of others – which is what Bush vs Gore ultimately turned on.

I could go on, but the point should be clear enough by now: what came to seem normal in the context of an all-out political struggle was actually highly abnormal in the context of the law. Except, of course, that conservatives have been making the abnormal normal for more than three decades now.

The game that conservatives are playing with America’s judicial system is deeply dishonest and that dishonestly runs right through the heart of the Supreme Court itself. Consider when Chief Justice Roberts, in his confirmation hearing, compared himself to an umpire calling ball and strikes. That was a lie. A trial court judge can be compared to an umpire. Their job really is “to apply the law”. But things are very different for appellate court judges. 


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Courts of appeal have two distinct purposes. One is simply to review what trial courts do, to check the instant replay, to switch sports metaphors. But their more difficult task is to do what common law courts have done for well over a thousand years – to deal with novel situations where conflicting principles and/or lines of precedent points in different directions, and no single past example clearly applies to the exclusion of all others. This is where the real hard work of appellate courts lies and it involves some reasoning skills that simply don’t apply in a trial court. 

The face of conservatism 

During her confirmation hearing, Sonia Sotomayor found herself in a pickle because she was on record speaking honestly about what appeals courts do. It was nothing compared to the racist projection-fest over her carefully nuanced “wise Latina” remarks, but it caused quite a stir nonetheless. “The court of appeals is where policy is made,” she said at a legal conference – and she was perfectly right.

As a journalist who sometimes covers public policy lawsuits, I can tell you, there’s no way to even understand what’s going on in many such cases if you don’t understand the different policies that various appeals courts have made. Those policies permeate the proceedings.

But let’s keep things simple: In the most obvious, straightforward way, the rulings of appeals courts set precedent for all lower courts in their jurisdictions to follow (with the Supreme Court sitting at top of the appeals court pyramid). That’s policymaking, pure and simple. Indeed, conservative icon Antonin Scalia has even gone so far as to say that making such rulings is the Supreme Court’s only real job. So, Sotomayor was simply making a commonplace factual observation. But telling the truth is a terrible no-no in the looking glass world that conservative judicial activists have created. 

So what does it mean that conservatives – as an article of faith – deny the very essence of what legal argumentation is all about above the trial court level? In one sense, pretty much the same thing it means that they deny the essence of what polling is about, when it shows Mitt Romney losing, or that they deny the essence of what climate science is about when they deny global warming. Their thinking in all such cases is entirely results-oriented, entirely political and entirely black-and-white. There is no room for subtlety, nuance, ambiguity or uncertainty – all those things that make any field of thought interesting, challenging, difficult and rewarding.

But there’s also this: because conservatives completely misrepresent the nature and substance of legal reasoning, they also invert the nature of good and bad legal reasoning -and that has profound political consequences. Good legal reasoning, they argue, is what conservatives do. They don’t believe in a living Constitution, they believe in the original text, or the original intent. (The two conflict sometimes. It gets ugly. Don’t ask.) 

This is the tale that conservatives tell. But look at what they do. Look at the terrible mess of the election we just had. Look at the bald-faced discrimination practiced by the city of Calera in Shelby County. Look at the 15,000-page legislative record for the 2006 extension of the Voting Rights Act. A living Constitution is one that responds to and reflects history – which is to say, it respects facts.

In sharp contrast, look at the conservatives on the Supreme Court waving all of that aside – “Details, details. America has moved on. Race is not a problem anymore. Trust us. We know.” All that matters for the Court’s conservative majority is whatever hairbrained interpretative theory they come up with – all the while claiming (for public consumption only) that they have no theories at all. No amount of facts matters in the face of a theory that explains all else away.

This is the face of conservatism today: fact-free, purely ideological reasoning. Exactly like the reasoning that said Romney was going to win 300 electoral votes. Exactly like the reasoning that says global warming is a hoax. Except, in this case, conservatives have spent more than 40 years pushing the argument that this is the way that all true legal reasoning is done.

And, by the way, say hello to states’ rights. Because that’s the argument Shelby County is making in its case. And here you thought the South lost the Civil War!

Paul Rosenberg is the senior editor of Random Lengths News, a bi-weekly alternative community newspaper.