I just can’t get the Supreme Court’s Voting Rights Act decision out of my head, particularly as I observe what trouble Egyptians are having establishing a bona fide democratic government. It’s just not that easy to form a true democracy and then maintain it. It’s taken us 237 years and we still don’t have it quite right.
As was widely reported at the time, just a couple of hours after the Supreme Court made the country safe again for restrictive, Jim Crowish voting laws in the South and elsewhere—via its ideologically-driven 5-4 mutilation of the Voting Rights Act—the Attorney General of Texas said:
With today’s decision, the State’s voter ID law will take effect immediately. Redistricting maps passed by the Legislature may also take effect without approval from the federal government.
Republicans in Texas developed the state’s blatantly discriminatory voter ID law and redistricting plan obviously in order to suppress and dilute the vote of minorities, who don’t value Tea Party conservatism as much as palefaces do.
Texas is—uh, was—required under Section 5 of the Voting Rights Act to get approval from the Justice Department or the D.C. federal court before it could breathe new legal life into Jim Crow, and thanks to two separate panels of federal judges, reactionary Republicans in Texas failed to get what they wanted. The federal court found that racial minorities would be disproportionately and negatively impacted by both the voter ID law and the redistricting plan and thus blocked them.
But the Supreme Court, with its conservative majority full of phony “originalists“—folks who ostensibly believe in a Dead Constitution—essentially disabled Section 5 of the Act by striking down the “formula” in Section 4, the formula that determined which states and jurisdictions were covered under Section 5’s preclearance requirements.
Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.
Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration’s advocate in the Supreme Court, thought the court’s decision was just wrong.
“Because we’re not there yet,” he says. “We’re not there yet, and the facts on the ground in Shelby County itself showed that.”
The reactionary virtual-rag Breitbart.com responded to Totenberg’s reporting by, what else, suggesting Charles Fried is not an authentic right-winger, as his opinions “are not usually conservative.”
Okay. Totenberg quoted another conservative constitutional law scholar, Michael McConnell, director of the Stanford Constitutional Law Center:
Stanford’s McConnell says the decision’s reasoning is just “made up.”
“There’s no requirement in the Constitution to treat all states the same,” he said. “It might be an attractive principle, but it doesn’t seem to be in the Constitution.”
McConnell’s conservative credentials are unimpeachable. He has defended originalism in ways that would make Antonin Scalia blush. He was appointed to the United States Court of Appeals for the Tenth Circuit by George W. Bush. He was also considered as a “short list” candidate to replace Chief Justice William Rehnquist—the job would go to Bush-appointee John Roberts, who authored the majority opinion in the Voting Rights Act case—and was also rumored to be a potential Court nominee under a McCain or Romney administration. McConnell also supports a partnership between a “neutral” federal government and religion, as well as a constitutional amendment that would outlaw abortion. So, McConnell cannot be charged with being a phony right-winger.
But because of the consistency of his originalist approach to constitutional interpretation, he would not have joined the majority in the Voting Rights Act case, writing:
Conservatives should be wary of reading specific prohibitions into generalized structural principles, just as liberals should be (but are not) wary of reading specific prohibitions into generalized notions of “liberty.”
The problem is that this conservative Court has made, and will continue to make, a living by reading into the Constitution what it wants to find there, even as its most outspoken members attack liberals for believing in a Living Constitution. If such hypocrisy were not so damaging it would be amusing.
But it is damaging, as the Texas Attorney General’s announcement made clear. Minority voters will be harmed—heck, the state admitted it to the Justice Department—and such harm will not stop with Texas. As Time’s Swampland notes:
Since the high court’s ruling on June 25, four of the other 15 states covered by Section 5 of the Voting Rights Act — Mississippi, Alabama, North Carolina and Virginia — are in position to move forward on tightening voting laws.
Conservatives, whose ideas have limited appeal, have always wanted to limit participation in the democratic process and it took Congress, acting in 1965, to finally put a stop to it. So, conservatives found another way to restrict voting: overrule Congress in the name of judicial restraint!
As I said, I just can’t get over it. The day the Court gutted the Voting Rights Act was a bad day for American democracy, even as some conservative folks are today throwing rocks at Egyptians struggling to find their democratic way. David Brooks, a conservative but not a Tea Party nut, ends his Friday column by saying that Egypt “seems to lack even the basic mental ingredients” necessary for a transition to true democracy.
I wish he would say the same about conservatives on the Supreme Court and in certain parts of the country.