Lots of things happened in 2013. President Obama was sworn in for a second term. We got a new pope and a new royal baby. Two bombs went off at the Boston Marathon and scared a nation. The Supreme Court stripped power from the Defense of Marriage Act and the Voting Rights Act. But these are all stories we've heard before, and if you haven't, you certainly will in the millions of "Year in Review" pieces set to be posted between now and New Year's. Over the next two weeks, our writers will instead preview the year ahead on their beats, letting you know far in advance what the next big story about the Supreme Court—or the environmental movement, immigration reform, reproductive rights, you get the picture—will be.
Just about everyone who goes through a musical theater phase at some point falls in love with Sky Masterson of Guys and Dolls. In the movie version, Marlon Brando plays the gambler who will wager “sky high” stakes and finds himself singing “Luck Be a Lady” while rolling the dice to see if he gets the girl.
Going all in may be what you’d expect in a fictional-singing crapshooter, but it’s a bit more surprising in a U.S. attorney general.
Based on Congressional Republicans’ apparently overwhelming opposition to President Obama’s proposal to strike Syrian military facilities in retaliation for the government’s use of chemical weapons, a new way to enact progressive legislation in the United States has become apparent.
In June, five Supreme Court Justices rolled back the Voting Rights Act, widely considered as the most effective tool in preventing discrimination in our nation's history. Section 5 of the act required that certain states and localities "preclear" proposed election changes with federal officials to ensure the changes were not discriminatory. The Court ruled that the formula used to determine which jurisdictions needed to get preclearance was outdated and unconstitutional. For those of us who care about voting rights, the question now is how do we respond?
For months before the November election, battles raged in Pennsylvania over whether the state would require voters to show one of a few forms of photo ID in order to cast a ballot. Many voting rights activists saw the bill, passed by a Republican legislature and signed by a Republican governor, as an attempt to tamp down turnout among nonwhite and poor Pennsylvanians. Estimates of just how many people lacked ID ranged tremendously, but clearly nonwhite voters would be disproportionately impacted by the new requirement. State House majority leader Mike Turzai seemed to only confirm the worst when he said publicly that the new law would “allow Governor Romney to win the state of Pennsylvania.”
One thing the three most anticipated cases of the recently completed Supreme Court term have in common is the questions they didn't answer. Hollingsworth v. Perry, by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage an open question. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") But the term's clearest passing of the buck was the decision in the potentially major affirmative-action case, UT Austin v. Fisher. While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education unconstitutional, after eight long months the Court issued a brief opinion that merely sent the issue back to the lower courts without a definitive ruling. What then, does Fisher suggest about the future of affirmative action?
Scene at the Signing of the Constitution of the United States, Howard Chandler Christy
In the United States, voting rights don’t march forward as much as they ebb and flow. Often, it happens like this: The prospect of short-term political gain leads one of the two parties to make a massive push for democratic participation, which is then counted by the other side, which has an equally large interest in maintaining a smaller electorate of particular people.
Congratulations, America! Racial discrimination in voting is now a thing of the past. Or so the five conservative justices on the Supreme Court decided in their ruling issued today, overturning the preclearance formula of the Voting Rights Act, under which states with long histories of discrimination at the voting booth had to get permission from the Justice Department before changing their voting rules. Now they're free to do as they wish, and although one could still challenge blatantly discriminatory rules in court, states like Texas, Alabama, Mississippi and South Carolina have been liberated from federal oversight.
“The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States,” writes Justice Ruth Bader Ginsburg in her dissent against the five justices who ruled to overturn Section 4 of the Voting Rights Act.
Since they began in April, weekly “Moral Monday” protests at the North Carolina General Assembly have swelled into a movement gaining national attention. Led by the state’s charismatic NAACP president, the Reverend Doctor William Barber, progressives from across the state have come to denounce a flood of regressive legislation emanating from the Republican legislature—and in some cases, to perform acts of civil disobedience. Last Monday, in the largest Moral Monday yet, 1,400 protested and more than 80 were arrested inside the Legislative Building. In all, more than 400 have been arrested so far. Barber himself has been arrested twice at the General Assembly.
The story of voting rights in recent years has been largely about conservatives and legislators in Republican states working hard to restrict them, and progressives trying to counter those moves with legal challenges and organizing drives. The most prominent fights have been over voter ID laws, which are supposed to address the "problem" of voter impersonation, something that occurs about as often as two-headed sharks. Unfortunately, the Supreme Court upheld voter ID laws in 2008. But today saw an unexpected defeat for those who would like to make voting as difficult as possible, when the Court struck down an Arizona law requiring voters to prove their citizenship.
On Wednesday, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder, the fifth time the Voting Rights Act’s Section 5 has been challenged in the high court since it was passed in 1965. Section 5 requires nine states and portions of six others with a history of racial discrimination to have changes to election law “pre-cleared” by the government before going into effect. Every lower court has upheld the provision as constitutional, and Congress reauthorized it four times—always with overwhelming bipartisan support.