Something I really hate is how John Roberts is held up as some model of reasonable conservatism. I’m sure he will go down in history just like William Rehnquist: a man who is extremely conservative but is said to be reasonable because the people who came after him were even more extreme. In the case of Roberts, Samuel Alito provides all the breathing room he could want.
Today, the Supreme Court is hearing a challenge to the Voting Rights Act. All the conservatives justices (except Thomas who never says anything) were very aggressive in their questioning. In particular, Roberts asked, “Is it the government’s submission that citizens in the South are more racist than citizens in the North?” This goes right along with what has become standard operating procedure for the conservatives on the court. This isn’t a question; it is polemics in its purest sense. The question is not about citizens, although I suspect that yes, they are more racist. The bigger question is if there are systemic aspects of these systems that perpetuate racism in how voting is done. And after this last election where all kinds of clearly racist attempts were made to finesse the election, these questions shouldn’t even need to be raised.
In fairness, the real question here is whether we should keep assuming that areas that were once overtly racist should be held to a higher standard. Should they have to get preapproval from the federal government before they change their voting laws. I wish we were going in the other direction: moving toward making all local governments get approval before changing the law. The way it now works, some place makes it harder for minorities to vote; they are slapped down about it later; but that doesn’t change the skewed election results.
John Roberts has a long history of being against the Voting Rights Act. He was a big part of the Reagan administration’s push to weaken the law. Adam Serwer wrote the history of this, Chief Justice Roberts’ Long War Against the Voting Rights Act. In it, he details how Roberts argued that the federal government should have to prove the law changes were intended to be racist. In other words, it’s all good as long as some governor doesn’t say, “This law will keep them darkies from voting!”
It’s very sad, but Roberts clear undemocratic opinions are typical of conservatives everywhere and increasingly the elite everywhere. At the hearing today, the conservatives seemed to be very concerned about how democracy worked and indicated the need for them to step in and fix its problems. We’re not talking about stopping mob rule. Instead, Scalia noted that the law was so popular that the legislators didn’t feel free to vote against it. What a terrible thing, right? Representatives actually listening to their constituencies? What’s next: the rule of law?!
Don’t be surprised if the important Section 5 of the Voting Rights Act is struck down. In fact, don’t be surprised if the whole act is struck down. This court has shown an eagerness to make decisions that are far broader than the question at hand. It used to be that the court calmed a more excitable legislature and executive. Now, the court is the more excitable. And democracy is in great danger.
It’s a lot like the Supreme Court of the late 19th century. That one threw out things like overtime pay and workplace safety laws. This one would if it could.
The SC is just such a strange institution. Its’ judges claim to be upholding eternal rules of law, but in reality they always bend to political pressure. "Citizens United" would not have happened back when Nader was on the cover of TIME. Once the New Deal proved politically popular, the Court stopped trying to eviscerate it. And so on. If 50,000 people were in front of the building rallying to support the VRA, the tone inside the chamber would be very different.
For an institution that reflects political pressure, the SC is not assembled by anything resembling a political process. It’s like Papal elections! (If the smoke coming from the Capital is black, we have a new Chief Justice.) Gerrymandering is nothing compared to lifetime appointments. And these people live forever. Conservative judges don’t die; they scurry away in the dead of night once conservative presidents are elected.
I propose that every Supreme Court justice be required by law to smoke heavily and consume at least 20 grams of trans fats daily.
(Best Supreme Court case name, ever? "Loving vs. Virginia," which overturned interracial marriage bans. You couldn’t have picked a better name if you used a pseudonym.)
@JMF – I don’t have as much of a problem with the lifetime appointments. But it does seem to me that the court has become very politicized recently. I thought the politicking that Kennedy did to Roberts to try to get him to change his mind on the ACA was shameful. What is he: the conservative whip on the court?!
One thing I don’t understand: don’t the justices think about how they will be viewed by posterity? John Marshall Harlan is today a hero, whereas the 7 justices who voted to uphold segregation in Plessy v. Ferguson are jokes. Doesn’t Scalia see that the future will know him for what he really was?
Here’s the thing. We now see Jim Crow for what it is was: racism. The people (like William F. Buckley) who made plausible sounding arguments at that time are totally transparent now. People will not look back on Bush v. Gore or the Obamacare ruling and think anything but, "Partisan hack." And I really don’t think that Scalia would want to be remembered that way.
Give that, I tend to think that on the Prop 8 case, the court will find in favor of gay marriage (6-3). It is just too obvious which side history is coming down on. Of course, Scalia will vote against it, because he is a ridiculously conservative Catholic. (I read that he drives something like 60 miles each Sunday to go to a Latin Mass!) That will be nice to see because within 10 years, that vote will be a joke to 90% of the people. Shortly after his death, people will begin speculating if Scalia was closeted. Of course, they’ll be wrong. He was just an asshole.