A Supreme Court Darkly

The Supreme Court decision yesterday that gutted the Voting Rights Act is potentially the most profound since Brown v. Board of Education. It’s more important than Roe v. Wade, Bush v. Gore, or the judgment last year that upheld the Affordable Care Act, because it denies the federal government the power, and state governments the obligation, to enforce democracy in any sense that anyone understands the word. In particular yesterday’s decision overturns nearly half a century’s guarantee of democracy for those Americans who had been denied that guarantee since the Republic’s founding. Within hours of the decision, at least four states that already had a history of vote suppression began introducing bills in their legislatures favoring more punitive voter-identification laws, fewer polling places in minority districts, and shorter hours in which to exercise the right that a democracy allegedly holds most sacrosanct. 

The court’s judicial action yesterday was created from bad faith and custom built for obfuscation. It pretends to uphold the rest of the 1965 act signed by Lyndon Johnson—and renewed by virtually unanimous, bi-partisan votes in the Congress as recently as seven years ago—while striking down the provision of the law that in fact makes the rest possible. In so crafting their majority opinion, five of the court’s nine justices set out to lose themselves amid weeds of legalese in the hope that history will lose sight of what they’ve done. In the evolving nature of its assurances on behalf of principles in the Declaration of Independence so familiar that we don’t need to name them, the constitution always has been about the spirit of justice before it’s about the letter of the law, about how the letter is written in that spirit and informed by it; whenever the letter betrays the spirit, it’s not by accident. That the palpably contemptuous Samuel Alito and Antonin Scalia, whose reflexive intellectual dishonesty long ago became a pathology, are hostile to the DNA of democracy represented by the vote isn’t surprising; but even after 20 years the racial self-loathing of Clarence Thomas, who suggested yesterday that the ruling against the act didn’t go far enough, remains a thing of wonder. However wrong-headed may have been his expressed opposition to affirmative action in another decision on Monday, the rationale wasn’t dishonorable on the face of it; affirmative action always has been a matter of controversy among well-meaning people. We might have thought the right to vote, however, was beyond contention in a country that still likes to consider itself the world’s light of liberty in the 21st century. 

Yesterday’s decision foundered finally on the bankrupt moral imagination of Anthony Kennedy and some willful myopia by Chief Justice John Roberts, who displayed in last June’s Obamacare ruling a sense of legacy that deserted him here. Up until yesterday morning—notwithstanding the ostentatiously disgraceful hackery embodied by Republican chairman Reince Priebus, a figure that no reasonable person is capable of pondering without revulsion—voting rights transcended ideology, supported as they have been by the likes of Barry Goldwater in the 1960s and even, albeit much more recently, one-time segregationist Strom Thurmond. True conservatives who have championed the individual understood that the vote is the single greatest check on government power. If nothing else comes of Tuesday’s judicial debacle, let’s hope that the right at least has the common decency to stop pretending it represents values of human freedom. One more time, as has become more and more the case over the past four and a half years, truer lines have been drawn, now thanks to a Supreme Court that holds the American promise in as low regard as it does a posterity that remembers Dred Scott.  


Once again I recommend Packing The Court by James MacGregor Burns, particularly the epilogue. Judicial review is not enumerated by the Constitution as a power of the SCOTUS and the court has more often used this power to protect the powerful than the powerless.

A liberal president exercising TRANSFORMING leadership would refuse to accept Tuesday's gutting of the VRA as constitutionally valid and challenge those defending the right of the SCOTUS to veto laws passed by an elected Congress to go through the process of amending the Constitution to give the court such power.

Would this be a constitutioal crisis? Yes, but we're just about there anyway. Would the current Republican House of Represenatives impeach the president for such an action? Probably. But this is a showdown that's been brewing for 200 years whose time has come.

The Obama administration will likely have the opportunity to rise to this challenge with how it responds to state voter-suppression laws now about to be passed as a result of Tuesday's decision. I suspect however that he will fail this test as he is proving to be a transactional leader, not a transforming one. An historic showdown with the Roberts court may have to wait till we elect someone the likes of Elizabeth Warren.

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