Extreme Conservative Judicial Activism And the Voting Rights Act

The "reporting" by the "Respectable Intellectual Center" (yes, I mean Jeff Rosen) "predicted" that Chief Justice John Roberts would prove to be a modest and moderate Justice (in fact, Rosen was sticking to his story on Roberts as late as July 2008 (Rosen wrote "It's still too early to judge Roberts's tenure, but it seems increasingly clear that liberals dodged a bullet when President Bush nominated him to be chief justice.")) In fact, Chief Justice Roberts has proven to be one of the most extreme conservative judicial activsts we have yet seen. Keep that in mind when you read any account on these issues by Rosen and the "Respectable Intellectual Center." Treating them as authoritative on these issues would be the equivalent of making Tom "Suck On This" Friedman your go-to analyst on Iraq. Roberts and his right wing band have proven to be extreme conservative judicial activists with little respect for the text of the Constitution, precedent, and the role of the Legislative Branch.

The latest threat posed by Chief Justice Roberts and his extreme conservative cohorts (Scalia, Thomas and Alito) is to the 14th and 15th Amendments to the Constitution and the Voting Rights Acts enacted and renewed by Congress under their Section 5 powers granted by those Amendments.

The Constitutional Accountability Center, issued this report (PDF) for its "The Shield" series and discuses the pending NAMUDNO case and the extreme judicial activism of the Roberts band:

Sometime in the next few weeks, the Supreme Court will issue what may well turn out to be the blockbuster ruling of this term — its decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). The plaintiff in this case, a small municipal utility district in Texas, is challenging the constitutionality of a critical provision of an iconic civil rights statute — the Voting Rights Act of 1965, most recently re-authorized by Congress in 2006 (with a Senate vote of 98-0). Questions posed by the Court’s conservatives during oral argument indicate that they are poised to agree with the plaintiff and strike down the challenged portion of the Act.

. . . A ruling that guts a core part of the Voting Rights Act would illustrate that the Court’s conservatives are not willing to take the text and history of the Constitution seriously, and the need for Justices who will. In NAMUDNO, the proper decision on the constitutional challenge to the Voting Rights Act will turn on the correct reading of the Enforcement Clauses of the Civil War Amendments — the 13th, 14th, and 15th Amendments — an area in which the Court has already gone far astray. With the ruling in NAMUDNO, the Court could make one of its biggest and most harmful constitutional errors in history.

CAC’s new report, The Shield of National Protection, reveals how drastically a ruling striking down part of the Voting Rights Act would depart from the text and history of the Constitution. As The Shield demonstrates through a careful study of the text and history of the Civil War Amendments, the Reconstruction Framers intended the Enforcement Clauses to provide Congress with broad authority to guarantee, “by appropriate legislation,” the fundamental rights secured by those Amendments, including the right to vote. . . .

Unfortunately, as discussed in The Shield, the sweeping enforcement power given to Congress has too often been ignored by judges more concerned with results than with upholding the Constitution. The modern Supreme Court has been the worst offender, re-affirming earlier erroneous rulings and creating, out of thin air, new restrictions on the exercise of federal authority under the Civil War Amendments. As we await the Court’s ruling on the Voting Rights Act, there is reason to fear that the Roberts Court will further restrict congressional power in an area at the heart of the rights and freedoms the Civil War Amendments were intended to protect.

During oral argument in NAMUDNO, the Court’s conservatives displayed marked hostility to the Voting Rights Act and seemed ready to invalidate the challenged portion of the Act, the Enforcement Clauses be damned. Such a ruling would be among the most stunning departures from constitutional first principles. According to Yale Law Professor Akhil Amar: “The American people ratified the Civil War Amendments with full understanding of the breadth of their language authorizing ‘appropriate’ federal legislation and knowing that Congress believed this language authorized transformative new federal statutes to secure the franchise and uproot all vestiges of inequality. A ruling by the Supreme Court striking down a critical part of the Voting Rights Act would represent a shocking and disturbing departure from this text and history.”

Indeed, such a ruling would illustrate the lie in everything conservative judges have been telling us about their approach to judging. It would fly in the face of constitutional text and history, when conservative judges purport to be bound by these sources. It would be starkly activist when they purport to favor judicial restraint. The disparity between these touted conservative principles and a ruling in NAMUDNO eviscerating a core provision of the Voting Rights Act would be so enormous that it could fundamentally alter the debate over the Supreme Court in this country, waking progressives up to the genuine threat posed by the Roberts Court and alerting Americans that conservative judges cannot be trusted to honor the Constitution’s text and history, even when our most fundamental rights are at stake.

(Emphasis supplied.)

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    From oral argument (5.00 / 3) (#5)
    by Steve M on Fri Jun 12, 2009 at 09:20:44 AM EST
    Roberts questioned a civil rights lawyer defending Section 5, Debo P. Adegbile of the NAACP Legal Defense Fund, whether it was "your position that Southerners are more likely to discriminate than Northerners?"  The attorney responded that, in some areas of the country, discrimination was much more "repetitious."

    [Justice Kennedy] pressed a federal government lawyer to say whether "the United States takes the position today" that "the sovereignty and dignity of Georgia is less than the sovereign dignity of Ohio, and that of Alabama less than that of Michigan?"

    Justices David H. Souter and Stephen G. Breyer were Section 5's most energetic defenders, reciting lengthy lists of Congress's findings of continuing racial discrimination in voting.  Souter told the lawyer challenging the extension, Gregory S. Coleman of Austin, Texas, that, when the record actually assembled by Congress is examined, "I don't understand how you can maintain that things have radically changed. That seems to deny the empirical reality."

    I do not see how Section 5 can survive given Kennedy's rhetoric at oral argument, frankly.  Who knew that when the nation granted Congress the authority to enact remedial legislation, they actually meant to say "the Supreme Court"?

    Denying empirical reality (5.00 / 2) (#7)
    by oldpro on Fri Jun 12, 2009 at 10:15:51 AM EST
    is a skill, required by the 'believer people' who are convinced of the rightness of their cause.  Such people are not only entitled to their own opinions, they entitle themselves to their own facts.

    The historically-demonstrated answers to the Roberts' and Kennedy questions are all the same and can be answered in a word:  "yes."


    My point is quite different (none / 0) (#6)
    by Big Tent Democrat on Fri Jun 12, 2009 at 09:59:03 AM EST
    ection 5 of the 14th and 15th Amendment gave the power to determine appropriate measures to the Congress, not the Supreme Court.

    That Kennedy even thinks it is his place to delve into that record in that depth is the problem.

    He has no Constitutional role here to attack the Congress' use of of its Section 5 authority.


    Hmm (5.00 / 1) (#8)
    by Steve M on Fri Jun 12, 2009 at 10:26:07 AM EST
    How is your point:

    Section 5 of the 14th and 15th Amendment gave the power to determine appropriate measures to the Congress, not the Supreme Court.

    "quite different" from my point:

    Who knew that when the nation granted Congress the authority to enact remedial legislation, they actually meant to say "the Supreme Court"?

    To me they look "quite similar"!


    My mistake (5.00 / 1) (#12)
    by Big Tent Democrat on Fri Jun 12, 2009 at 11:36:04 AM EST
    In the power struggle among (5.00 / 1) (#9)
    by oldpro on Fri Jun 12, 2009 at 10:32:31 AM EST
    the three branches of government, isn't it only restraint that holds any one branch in check, with the court holding the King's X on the other two?  After all, who will challenge them...and how?

    If the Supreme Court decides to take the 'supreme' as a mantra instead of a title, who will stop them?

    If these radicals cannot win at the ballot box, then 'fix' the ballot box is one solution.  It's better not to wait until they have to actually choose the president, tho.  So public.


    Would this even be an issue if the press (5.00 / 1) (#10)
    by vicndabx on Fri Jun 12, 2009 at 10:51:19 AM EST
    actually reported news that could so dramatically impact huge swaths of the American populace?  Had I not been a regular visitor here I wouldn't have even known about this.  Even if the media didn't want to cover the racial angle; which for the life of me I don't understand why they wouldn't, they could at least play up the "GOP is attempting to garner more influence in Congress by way of the courts" angle.  Thanks for the informative post.

    it is quite unfortunate (5.00 / 2) (#11)
    by oculus on Fri Jun 12, 2009 at 11:23:11 AM EST
    The "conservatives" in the US are so much more skilled than the liberals at setting forth the message they are the defenders of our Constitution, our security etc.

    Request for clarification (none / 0) (#1)
    by Lora on Fri Jun 12, 2009 at 09:07:37 AM EST
    What provision of the Voting Rights Act is being challenged?  I could not find it in your article.

    Section 5 (none / 0) (#2)
    by Big Tent Democrat on Fri Jun 12, 2009 at 09:15:28 AM EST
    Section V: Preclearance. (none / 0) (#3)
    by andgarden on Fri Jun 12, 2009 at 09:17:33 AM EST
    I've been imagining a conversation (none / 0) (#4)
    by andgarden on Fri Jun 12, 2009 at 09:19:52 AM EST
    between Hugo Black and Antonin Scalia on this. I think Scalia would find himself revealed.

    Congress should simply expand the (none / 0) (#13)
    by MyLeftMind on Fri Jun 12, 2009 at 11:59:00 AM EST
    jurisdiction to cover all states. Then the imbalances between states is a moot issue.

    As it is now, Florida and South Carolina aren't even covered.

    The point should be that states can't slip in new policies that might limit voting access to certain groups, not that some states are more likely to try to do so and therefore need monitoring.

    Florida and South Carolina are covered (none / 0) (#14)
    by Big Tent Democrat on Fri Jun 12, 2009 at 12:06:45 PM EST
    Indeed, the rationale for it is based on SCOTUS jurisprudence about prior institutionalized racism - mostly in literacy laws, Jim Crow, segregation and other such institutionalized racism.

    It appears the SC (none / 0) (#18)
    by me only on Fri Jun 12, 2009 at 02:49:45 PM EST
    requires Preclearance, but that only some counties in Florida do accoring to usdoj sec 5 covered.  (I can't seem to link on this site.)

    Justice Scalia Explains why VRA Section 5 (none / 0) (#15)
    by Dan the Man on Fri Jun 12, 2009 at 12:14:32 PM EST
    is constitutional and Kennedy's concern about the "dignity" of states is wrong.


    "Thus, principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic [Secton] 5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. "

    "I would also adhere to the requirement that the prophylactic remedy predicated upon such state violations must be directed against the States or state actors rather than the public at large. See Morrison, supra, at 625.626. And I would not, of course, permit any congressional measures that violate other provisions of the Constitution. When those requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under [Section] 5 to prevent or remedy racial discrimination by the States."

    Justice Kennedy Explains why the VRA (none / 0) (#16)
    by Dan the Man on Fri Jun 12, 2009 at 12:23:54 PM EST
    preclearance provision is constitutional.


    "In City of Rome, 446 U.S. 156, the Court rejected a challenge to the constitutionality of a Voting Rights Act provision which required certain jurisdictions to submit changes in electoral practices to the Department of Justice for preimplementation review. The requirement was placed only on jurisdictions with a history of intentional racial discrimination in voting. Id., at 177."

    "Like the provisions at issue in South Carolina v. Katzenbach, this provision permitted a covered jurisdiction to avoid preclearance requirements under certain conditions and, moreover, lapsed in seven years. This is not to say, of course, that [Section] 5 legislation requires termination dates, geographic restrictions or egregious predicates. Where, however, a congressional enactment pervasively prohibits constitutional state action in an effort to remedy or to prevent unconstitutional state action, limitations of this kind tend to ensure Congress. means are proportionate to ends legitimate under [Section] 5."


    That was then . . . (none / 0) (#17)
    by Big Tent Democrat on Fri Jun 12, 2009 at 01:57:48 PM EST
    That may have been then (none / 0) (#19)
    by wagnert in atlanta on Fri Jun 12, 2009 at 10:35:27 PM EST
    but this is now.  Look at this report from the US Commission on Civil Rights, specifically page x in the Executive Summary (in this context, an objection is a denial of a proposed change in election procedure):

    The Commission's study finds the Justice Department's objections, as a percentage of submitted changes from covered jurisdictions, have declined steadily and markedly over 40 years to the point that during the last decade, objections have virtually disappeared, particularly with respect to change types that represent the bulk of the submitted changes. The Commission's study examined three legislative periods, 1965-1974, 1975-1982, and 1982-2004, and found that the proportion of objections to submitted changes decreased throughout, from 5.5 percent in the first period to 1.2 percent in the second, and to 0.6 percent in the third. Significantly, the ratio of objections to submitted changes was less than 0.1 percent in the period 1995-2004. In the current extension period, the Commission finds that the objection rate is low regardless of change type.

    In other words, for every thousand changes proposed in the period 1995-2004, one was blocked.  Doesn't this indicate that the South has given up on trying to limit the rights of blacks, whether directly or indirectly -- along with Texas, Arizona, Alaska, several counties in California, two in South Dakota, half of New Hampshire -- and Queens, the Bronx and Manhattan (!)
    Add the fact that blacks are now far from powerless, as they were in 1965, and can effectively fight back if they feel their rights are infringed, and Section 5 looks less like a defense of the helpless and more like a pork project for bumbling DOJ employees who can't be trusted in a courtroom.


    Sounds like (none / 0) (#20)
    by Steve M on Sat Jun 13, 2009 at 07:06:37 AM EST
    an argument you should be presenting to Congress, the body with the Constitutional authority to decide when remedial legislation is appropriate.

    The original legislation (none / 0) (#21)
    by wagnert in atlanta on Sat Jun 13, 2009 at 09:02:53 AM EST
    was supposed to expire in five years.  Congress has extended that to 66 years.  There are constitutional limits on their freedom of action too, you know

    What constitutional limits (none / 0) (#22)
    by Big Tent Democrat on Sat Jun 13, 2009 at 09:16:15 AM EST
    do you think apply here?