Posts © 2011-2012 by Gerald G. Day

Sunday, May 29, 2016

May 29, 2016
The expected nomination of Donald Trump has prompted numerous inquiries or predictions, including this: Is the Republican Party about to collapse or, more generally, will there be a realignment? The imminent demise of the GOP has been predicted periodically for some years, even within the Party. However, Republicans have continued to win elections to Congress, governorships and legislatures. Through gerrymandering and voting restrictions, they have solidified their position. Only the presidency has escaped Republican dominance, and even there they have won five terms out of nine since 1980 (four, if you go by the popular vote). Perhaps major change will occur now. If Trump is nominated, there may be significant desertions — in numbers and prestige — in November, and the split between Trump’s followers and the GOP elite will persist in some degree whether or not he is elected. However, that split, between elite and base, may be no greater now than before; one comment offered this description of Trump’s followers: "Their top worries are terrorism, national security, the economy and the ballooning national debt. . . . In other words: These aren’t just Trump voters, these are today’s Republicans."[34]
Not all is happy among Democrats, either. Their failure to maintain — and deserve — wide support among people of modest income has been a key factor in the Republican rise; compare the period 1932-1976, when Democrats won eight of twelve presidential elections. Thanks to Bernie Sanders and Elizabeth Warren, some Democrats are returning to the party’s liberal roots. That will not be reflected in this year’s presidential election, assuming Clinton to be the nominee, nor would things change in the short run even if Sanders were elected. As Rick Perlstein puts it, " If, by some miracle, Bernie Sanders entered the White House in January, he would do so naked and alone—in command of a party apparatus less prepared ideologically, institutionally, and legislatively to do great things than at any other time in its history."[35]  The liberalizing trend might continue, but a Clinton win in November might reenforce the belief that centrism is the route to victory.  
We have the odd phenomenon of two candidates who are widely disliked and mistrusted, but in a sense their nomination should not be a surprise: Trump is what has happened to the Republican Party; Clinton is what has happened to the Democrats.

There is talk, probably aimless, of a third party, which could shake out as left-center-right, with moderate Republicans and centrist Democrats forming the middle group. An existing third party could be a rallying point: a leader of the Green Party has made a somewhat condescending pitch to Senator Sanders to join its campaign or, failing that, for his supporters to do so.[36]  However, third parties or other protest movements usually aid the opposition. On the same page as the article about the Green Party was one urging Sanders to run as an independent,[37] but that likely would have the same result, and do these people want Trump? The 2000 election wasn’t that long ago. It would be better if the Greens and others on the left were to join and revitalize the Democrats. Probably we will just muddle/stagger along.





Wednesday, May 4, 2016

May 4, 2016

This is a most peculiar primary election season. The establishment candidate on the Democratic side has a big lead. On the GOP side, the supposed establishment candidates are out of the race, and the only remaining hopeful who might claim that status is far behind.* The Democrat/liberal(?) promises more of the same, the Republican/ conservative(?) promises radical change. Trump is a surprise to everyone; Clinton is wrapped in the mantle of inevitability. Democratic voters are playing it safe; Republicans are rolling the dice. Trump has no experience in government and, apparently, little understanding of how it works. Clinton runs on her experience, although that is largely a matter of holding various posts, rather than achievement. Neither is exactly a candidate of the people, but the wealthy Republican has made a better show of being for them than the wealthy Democrat.
In some ways Clinton and Trump are similar. Each has self-confidence to the point of arrogance (or in Trump’s case, beyond). Trump strikes a pose of invincibility; Clinton exudes a sense of entitlement. Each demonstrates the power of money. Neither is a natural campaigner; each has personal (or in Hillary’s case, familial) baggage; each is mistrusted by many. Clinton gives the impression of being willing to say anything to be elected; Trump is just willing to say anything. Each represents his or her party’s move to the right; the difference is that, at least for the campaign, Sanders has created a leftward pull on Clinton. Each has dominated media attention, Trump by being a clown, Clinton partly because of the media’s centrist bias and refusal to take Sanders seriously.
A final election between these two could be dismal; as one observer put it, voters "will vote for Clinton out of fear, not hope."[33]

* 5/5/16: Now there is no one, as John Kasich suspended his campaign yesterday.



Thursday, April 14, 2016

April 14, 2016
In thinking about the state of Democratic politics, the phrase "a choice, not an echo" came to mind. Fifty years ago, it was the slogan of conservative Republicans who thought that the party had become too much like the opposition. When Barry Goldwater announced his candidacy for the presidency on January 3, 1964, he said "I will offer a choice, not an echo," and added, "This will not be an engagement of personalities. It will be in engagement of principles." The phrase also became the title of a book by Phyllis Schlafly published on May 1 of that year. My thought was that it now could be used to describe a needed reaction against the centrist-neoliberal-faux conservative form of the party once known as "the Democracy."
Oddly, Republicans and conservatives don’t seem to realize that they have dominated political discourse for some time. Mrs. Schlafly’s A Choice, Not an Echo was republished in 2014. That this reflected an ongoing angst on the right was demonstrated by a review on The New American: "In her 2014 update to the book, Schlafly demonstrates that not much has changed, as Republican candidates for president have remained nothing but an "echo" of the New Deal Democrats, rather than offering a meaningful alternative."[27] Surely that must be an aberrant view; well, no, here’s the title of a February article on Brietbart: "Sen. Ted Cruz Offers a Choice, Not an Echo."[28]  The choice was, in that case, pandering to the Tea Party.
Whatever the delusions among Republicans, Democratic politics, especially on economic issues, has drifted rightward over the past forty years. Hillary Clinton is the favorite of the Democratic establishment, which consists of those favored by such policies and those continuing to support them. Bernie Sanders’ campaign has offered an alternative, but it has not been embraced by those in the mainstream, either in terms of the Party or the media; he still is regarded by them as a fringe candidate. On Friday, April 8, The New York Times opinion page was in aggressive center-right mode. Paul Krugman dismissed Sanders, as he had done before, and a guest editorial criticized the government for interfering with the Pfizer "inversion," its attempt to avoid taxes. The author’s solution: lower taxes.
There are, however, signs that many people, including Sanders’ enthusiastic supporters, have taken notice of the Democrats’ rightward shift.
Thomas Frank’s latest book is Listen, Liberal, or What Ever Happened to the Party of the People? Referring to a supposed liberal state, he points out that the "kind of liberalism that has dominated Massachusetts for the last few decades isn’t the stuff of Franklin Roosevelt or the United Auto Workers . . . Professional-class liberals aren’t really alarmed by oversized rewards for society’s winners. On the contrary, this seems natural to them — because they are society’s winners. The liberalism of professionals just does not extend to matters of inequality; this is the area where soft hearts abruptly turn hard."[29]  That may be too strong, but the attitude he describes would justify the conservative rant about liberal elites, or would if one ignored conservative elites.
Robert Reich, in his recent book Saving Capitalism: for the Many, Not the Few, noted that, "[w]hile nonbusiness causes, such as the rights of minorities and women, continue to have better odds of success under Democratic administrations and Democratic Congresses than under Republican ones, business interests have done well under both." He has harsh words for the Clinton administration. Bill Clinton "pushed for enactment of the North American Free Trade Agreement, followed by the establishment of the World Trade Organization—two items of central importance to big business." More generally, "While the Democratic Party of Franklin D. Roosevelt’s New Deal devised financial regulations to constrain Wall Street, Clinton and his allies in Congress eliminated many of those same restraints."[30] That included repeal of the Glass-Steagall Act, which had separated commercial from investment banking.
Will the new awareness translate into progressive victories in November? Senator Sanders draws large crowds, and has won a string of primaries, but the betting still is on Hillary Clinton. John Nichols, writing in The Nation refers to a "new crop of progressive populists . . . winning primaries across the nation and challenging Clintonian orthodoxy."[31]  The Nation’s editor and publisher, Katrina vanden Heuvel, sees the progressive ("Warren") wing as "an ascendant force within the party, so much so that during her campaign, Clinton has moved to the left on many issues, including trade."[32]  That Clinton has moderated her views, at least for the purposes of the campaign, is clear, but whether the progressives are about to take control is less so.
Let’s hope that it works out that way. Given the stagnation in wages, growing inequality, environmental degradation, collapsing infrastructure, and loss of industry and jobs, it’s time for a genuinely liberal government.


Quotes are from an excerpt from the book, "How Dems Created a ‘Liberalism of the Rich’ " at

30. Saving Capitalism, pp. 174-75.


32. story.html>

Tuesday, March 15, 2016

March 14, 2016
Here’s an illustration of how right-wing orthodoxy forces Republican candidates not only to ignore facts, deny scientific opinion and invite ecological disaster, but risk political self-destruction and even personal loss. Marco Rubio represents, and needs the votes of, Floridians; he lives in South Florida, threatened by rising sea level. Last October, fifty-five mayors and business leaders wrote to Rubio, along with the rest of the Florida congressional delegation. "We believe," they said, that "it is time for Congress to acknowledge what we in South Florida already know: that the escalating costs of sea level rise and other climate impacts now pose a serious threat to the economic stability and future habitability of South Florida."[24] 
On January 21, fifteen Florida mayors — including Miami’s mayor, Tomás Regaldo, a Republican who has endorsed Rubio — sent an open letter to the Senator, calling on him "to acknowledge the reality and urgency of climate change and to address the upcoming crisis it presents our communities." It pointed out that "We are already experiencing the effects of a changing climate. Sea levels off the coast of South Florida rose about eight inches in the twentieth century. As a result, we have seen more tidal flooding, more severe storm surges, and more saltwater intrusion into aquifers."

One would think that such appeals would resonate with a Senator from that region, and would give the necessary cover to admit that something must be done.  He lives in West Miami, which will be impacted by sea level rise, so not only does he know the problem at first hand, he may be directly affected by it.   
At the debate on March 10, the moderator quoted another request from Mayor Regaldo: "Will you, as president, acknowledge the reality of the scientific consensus about climate change and, as president, will you pledge to do something about it?" The Senator merely recited a litany of denial and evasion. Climate change is no big deal: "the climate has always been changing." Yes, there are higher sea levels, "or whatever is happening," but flooding is South Florida’s fault for building on a swamp. Legislation is useless or worse: "as far as a law that we can pass in Washington to change the weather, there's no such thing," and the laws which have been proposed to reduce emissions "would be devastating for our economy," and would have "zero" impact on the environment.[25]  (As he put it in a debate in September, "We're not going to destroy our economy the way the left-wing government we're under wants to do.")[26]

Senator Rubio wasn’t always so reactionary. The mayors, in their letter in January, reminded him of that: "[In] 2006, you acknowledged the reality of climate change and promoted solutions including energy efficiency measures, tax incentives for renewable energy, and alternative fuels. You supported hybrid vehicles because they save money ‘while reducing emissions and helping to curb global warming.’ " That was then: "However, you have since reversed course and claimed that you ‘don’t agree with the notion that some are putting out there, including scientists, that somehow, there are actions we can take today that would actually have an impact on what’s happening in our climate.’ " They pointed out that, in October, he "dismissed efforts to develop renewable energy and called climate action ‘trying to change the weather.’ "
The March audience apparently approved of his change of heart, and applauded his evasions. That debate was held in Miami, so perhaps he knows his constituents, and they fear the government more than climate change. However, even the faithful might begin to wonder as the waters rise, and remember who told them nothing could or should be done. 
The foregoing was written, as the date shows, before the Florida primary on March 15. Senator Rubio has dropped out of the presidential race, having lost the Florida vote. Whether that loss can be traced to his views on climate change is doubtful, but at least it is clear that pandering to the troglodytes wasn’t enough.

24. florida
Video at:
26. September-16-gop-debate/

Wednesday, March 9, 2016

March 9, 2016
The term "neoliberal" always has puzzled me. "Neoconservative" also can be confusing in that second-generation neocons, unlike their elders, are not former liberals, are more rigidly conservative, and focus on an imperial foreign policy, but in each generation we have known pretty much where they stand. "Neoliberal" is more elusive in meaning, describes people in different parts of the political spectrum, and seems to have variations within variations.
A long, erudite article on Wikipedia [21] defines neoliberalism "primarily in reference to the resurgence of 19th century ideas associated with laissez-faire economic liberalism." The roots of that attitude lie in the eighteenth century. In that sense, it has a different meaning and implies different policies than modern political liberalism, and so is misleading. The original neoconservatives were, literally, new conservatives; Ronald Reagan, identified as a practitioner of one branch of this form of neoliberalism, hardly qualifies as a new liberal. His beliefs were not a new liberalism, but an old conservatism: reducing government spending, cutting taxes, deregulation, fighting inflation.
The article refers to another form of neoliberalism, one which more properly could be described as such. However, the use is accurate not because the adherents were new liberals, but because they espoused what they considered to be a new style of liberalism. It was advocated by Bill Bradley, Gary Hart, Paul Tsongas and others in the 80s and adopted by Bill Clinton. A book devoted to the phenomenon attempted, without success, to define it; the closest approach was a description by Arthur Schlesinger, Jr., a critic: "[Neoliberals] have joined in the clamor against ‘big government,’ found great merit in the unregulated marketplace, opposed structural change in the economy and gone along with swollen military budgets and the nuclear arms race. Far from rejecting the Reagan frameworks, they would at most rejigger priorities here and there."[22]  That may be too harsh, but certainly Clinton’s campaign promise to end welfare as we know it (and signing a Republican reform bill), his declaration that the era of big government is over, and his approval of the repeal of Glass-Steagall fit the description. Whatever the precise formula, some variation on this centrist stance still influences Democratic economic philosophy.
That philosophy has been challenged by Bernie Sanders. It’s unfortunate that he is a socialist, not only because that term confuses and frightens so many, but because a challenge to economic centrism might be more effective from within. However, his critique is enough to make some nervous; take the columnist Thomas Friedman, a self-identified neolib, as an example. On February 17, he went on at length about entrepreneurship and asserted that "we're not socialists." He would, he said, "take Sanders more seriously if he would stop bleating about breaking up the big banks and instead breathed life into what really matters for jobs: nurturing more entrepreneurs and starter-uppers." He seems to think that Senator Sanders doesn’t know where employees come from. "They come from employers — risk-takers, people ready to take a second mortgage to start a business." No doubt, with a little deregulation, they all would succeed and employ thousands.
Friedman advised Sanders to consult a study which allegedly would tell him this: "The identity of America is intrinsically entrepreneurial [enshrined] by the founders, popularized by Horatio Alger, embodied by Henry Ford." The source actually said: "The identity of America is intrinsically entrepreneurial. It is an indelible part of our collective history—sown by the Founders, popularized by Horatio Alger, embodied by Henry Ford." The original is silly enough — the founders spent little time nurturing startups, and the notion that anyone can become rich if he shows a little pluck might embarrass the Chamber of Commerce — but Friedman found it necessary to substitute "enshrined" for "sown," thereby adding a semireligious aspect to the admiration of business.[23]   Friedman also quoted, accurately, from the same paragraph in the original: "With enough hard work anyone can use entrepreneurship to pave their own way to prosperity and strengthen their communities by creating jobs and growing their local economy." A factory worker whose job has been shipped overseas needn’t worry; he can launch a high-tech business. This naïve tale is the delight of conservatives. Flirtation with it by Democrats may be one reason they have lost the votes of working people.



Ronald Rothenberg, The Neoliberals (1984); quote on p. 19.

Friedman referred to an article, "Milstein Commission on Entrepreneurship and Middle-Class Jobs," which in turn refers to a report, "Can Startups Save the American Dream?" from which his mangled quotation is taken:

Thursday, March 3, 2016

March 3, 2016
I think that we are beyond the point of wondering whether there is something seriously wrong with contemporary American politics. Doing something about it might be facilitated by understanding the factors which make up the picture. An excellent history of political philosophy offered an analysis of the ills of a certain time and place. Because the time was a century ago, and the place Europe, it isn’t strictly relevant, but it may be suggestive nonetheless: "Several decisive elements came together in the late nineteenth and early twentieth centuries . . . . They are racism, nationalism, irrationalism, and antiliberalism."[14]
Applied to the United States, those elements have had a mixed history. Irrationalism, in the sense of a refusal to respect facts and to think analytically, probably never is far below the surface in politics, but it is more prominent now than a few decades ago.
Racism, while it never disappeared, was exposed and weakened in the civil rights era, but has revived. One of its milder but obvious manifestations has been the attitude of many toward President Obama. Seattle has just contributed to the epidemic of killings of blacks by police; it’s difficult not to see racism in that pattern.
Antiliberalism — not true conservatism, but hostility to anything progressive or egalitarian — has been a focus of negativism and obstruction at least since the New Deal, but has swelled recently, aided by reactionary media and by the massive political spending by those whose interests would be threatened by liberal programs. The very words "liberal" and "progressive" have become pejoratives. "The liberal establishment" is a vehicle for blaming the condition of the country on liberals, even though Congress and most states are ruled by conservatives, and at least some of the problems are the result of their policies.
"Nationalism" is used in several ways. In the period to which the quotation above relates, it often referred to a desire for an independent homeland, defined ethnically or linguistically; various parts of the Austro-Hungarian Empire fit that model. In that sense, it also implies fragmentation, the breaking away of parts of the Empire. At the present day, a different sort of fragmentation, the resistance of some members of the European Union to common measures, also has been labeled nationalism. Thomas Piketty, in a recent New York Review of Books, refers to "the hateful nationalistic impulses that now threaten all Europe."
In this country, nationalism is a confused concept. It has had aggressive aspects, amounting to imperialism, economic or military. In that sense it may be, manipulatively, uniting at home. Although exceptionalism is a core concept in American nationalism, and would seem to be a unifying idea, those who boast of it often, ironically, also complain of the country’s dire condition. The way around is to speak of the country’s basic or former exceptionalism, corrupted by, of course, liberalism.
However, "nationalism" may as easily imply fragmentation here as well. "White nationalism" is the label for racial and ethnic separatism; according to one source, "Whites may need to create a separate nation [within the U.S.] as a means of defending themselves."[15] Fragmentation also is envisioned by secessionist groups such as the League of the South, which "advocates the secession and subsequent independence of the Southern States from this forced union and the formation of a Southern republic."[16]  It does this in the name of "Southern Nationalism." It defines the Southern People as the "the descendants of European, Christian peoples who settled the Southern region of North America in the 17th and 18th centuries,"[17] thereby working in racism.
The condition of the Republican Party illustrates the growth of irrationalism: Ronald Reagan looks good in retrospect, as do Gerald Ford, George H. W. Bush, and even Richard Nixon and George W. Bush in their better moments. Dwight Eisenhower looks like a saint. Donald Trump, very possibly the Republican nominee, bloviates a mixture of arrogance, resentment, bias and sheer nonsense. Only a suspension of thinking, a burst of irrationalism, could make people follow him, but they do.
The Trump campaign may do a service by shining a light on that factor, as well as on the others. Racism certainly is present in the anti-Mexican rhetoric, and he has attracted support from white nationalists such as David Duke. His "Make America Great Again" slogan is an appeal to nationalism. His antiliberalism, though, is selective, so that he is accused by the other Republican candidates of being a liberal, which illustrates how that has become a term of derision.
What can be done? The Supreme Court has pushed things in the wrong direction: Citizens United facilitated the flood of political spending, and Shelby County maimed the Voting Rights Act and encouraged a flood of voter-suppression laws. The replacement of Justice Scalia is a critical factor which means, if the Senate has its way this year, that a good outcome depends on electing a Democratic president.
Irrationalism will remain a major problem so long as the GOP panders to it, but it would be comforting to think that a Democratic president would have a positive influence on the other three tendencies. Part of the problem is that the likely Democratic nominee is not terribly liberal, so we may have a rerun of the Obama administration, accusations of liberalism with little of the substance. Mrs. Clinton does have strong black support, which bodes well for issues involving race, but she’s too fond of military intervention to be comforting as to nationalism.
I hate to put down my generation, but the best hope for solving these problems lies in younger voters whom Bernie Sanders has inspired. I hope that, assuming their candidate loses in the primaries, they will turn their attention to Congress and the state legislatures.




Thursday, February 25, 2016

February 24, 2016
Ari Berman, in his recent book Give Us the Ballot, traced the history of the Voting Rights Act (VRA). In discussing its fate during the Reagan administration, he noted the influence of a young lawyer in the Justice Department, John Roberts, about whom we would hear much more later. Roberts wrote numerous memos arguing for a limited interpretation of the Act.

The Voting Rights Act is based upon the Fifteenth Amendment, which provides as follows:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
Section 2 of the VRA stated that "No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color." That seems straightforward enough, but enforcement of it turned out not to be. The Supreme Court, in City of Mobile v. Bolden (1980), considered a claim under Section 2. The plurality opinion pointed out that the Court previously had considered challenges brought directly under the Amendment and, in ruling on them, it had held that "action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory purpose." In other words, proof of intent was required.
Although it should have been obvious that the VRA was designed to enforce the Amendment, which gave Congress the power to do so, the opinion in Mobile declared that the language of Section 2 of the VRA "no more than elaborates upon that of the Fifteenth Amendment," and that the legislative history "makes clear that it was intended to have an effect no different from that of the Fifteenth Amendment itself." Why, then, one might ask, did Congress bother to enact it? Ignoring that puzzle, the plurality held that any claim under Section 2, like one under the Amendment, would fail unless there was proof of discriminatory intent.[11]   Intent is notoriously difficult to prove in any context; requiring it under a remedial statute dealing with state action is judicial obstruction.
Early in the Reagan years, the VRA was up for renewal, and lawyer Roberts was an enthusiastic supporter of the intent requirement. He urged the administration to uphold that principle in dealing with Congress regarding renewal. Mr. Berman quoted from one of Roberts’ memos, of December 22, 1981, in which he argued that "violations of §2 should not be made too easy to prove, since they provide a basis for the most intrusive interference imaginable by federal courts into state and local processes."[12] The House, however, proposed an amendment to §2 which would overturn the Court’s requirement of intent. Roberts responded with a memo of February 23, 1982, arguing against the change and attaching the portion of his earlier memo setting forth the "intrusive interference" theory quoted above.[13]   Fortunately, the administration was less doctrinaire than Roberts and, in 1982, President Reagan signed the renewed Act, which overturned the Mobile interpretation; the restated Section 2 would be violated if a voting practice had the effect of discriminating against minority voters, whether or not the plaintiffs could establish that it was motivated by bias.
Thirty-one years later, Chief Justice Roberts had the opportunity to enforce his views, although with a different part of the VRA as his target. In Shelby County v. Holder (2013), in which he wrote the majority opinion, the issue was the viability of §5 of the VRA which, unlike §2, applies only to jurisdictions with a history of racial discrimination. However, to Roberts the issue was the same, states’ rights, including the right to equal treatment: "The question is whether the Act's extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements." He decided that one of the extraordinary measures, the formula in §4(b) for defining jurisdictions covered by §5, was obsolete, even though it had been reaffirmed by Congress in 2006. Even if it were out of date, and acknowledging the unequal treatment of states, what part of the Constitution did the Act offend?
Roberts first invoked a general principle: "Outside the strictures of the Supremacy Clause, States retain broad autonomy in structuring their governments and pursuing legislative objectives." True, but too vague to serve; certainly there must be a Constitutional peg on which to hang the argument. Oh yes: "Indeed, the Constitution provides that all powers not specifically granted to the Federal Government are reserved to the States or citizens. Amdt. 10." Well, no, it doesn’t; the Tenth Amendment does not include the word "specifically."
Undaunted, he continued: " '[T]he Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections', " quoting Gregory v. Ashcroft (1991), which does say that, but cites as its authority a non-majority opinion. However, authority or none, that argument is spurious. In addition to being a weak reed (and misquoted by Roberts), the Tenth Amendment clearly must yield to the Fifteenth in this area. The Tenth provides, tautologically, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." With or without Roberts’ amendment, it says nothing about voting rights. The Fifteenth, specifically, addressees voting rights, and it, specifically, delegates powers to the federal government. The Tenth has no place in the argument.
Stripped of the attempt to find a relevant Constitutional provision, Justice Roberts’ holding comes down to two assertions with which he began his opinion. "Preclearance" requires covered jurisdictions to obtain permission, from the U. S. Attorney General or from the U. S. District Court for the District of Columbia, before enacting any law related to voting. That, he said, is "a drastic departure from basic principles of federalism." Applying that requirement only to some states — he refers to this as "disparate treatment of States" — is a "dramatic departure from the principle that all States enjoy equal sovereignty."
Under this theory, states’ rights are part of federalism, a term more often used than defined. According to Roberts, federalism necessarily implies "equal sovereignty," but that is a meaningless concept: the requirement that states be treated equally is inconsistent with the notion that they are sovereign. Sovereignty, by definition, means immunity from outside authority; if states are sovereign, they can’t be "treated" by another authority (the federal government), equally or otherwise. A possible fallback position would be to assert that states have limited or qualified sovereignty. (That is more or less the truth, although it would be more accurate to say that states have certain areas of jurisdiction). However, conceding limits on sovereignty makes it difficult to claim that some fundamental right of a state has been violated. In discussing the Tenth Amendment, the Chief Justice said: "This allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States." "Residual sovereignty" and "broad autonomy" also seem to contemplate something too restricted to be of any aid to his argument. The anomaly runs through his analysis, but he seemed unaware of it.
The Constitution doesn’t support the argument, so where do those core concepts — the requirement of an updated formula, and equal sovereignty — come from? They come from irrelevant comments — dicta in legalese — in an earlier opinion by Chief Justice Roberts.
He wrote for the majority in Northwest Austin Utility District v. Holder. The plaintiff utility district had requested, using the Act’s "bail-out" clause, to remove itself from the coverage of VRA §5. The lower court found it to be ineligible to use that procedure. The utility district appealed, again requesting bailout, but arguing in the alternative that the preclearance requirement of §5 was unconstitutional. The Court held that "the district is eligible under the Act to seek bailout." That decided the case: "We therefore reverse, and do not reach the constitutionality of §5." Perhaps "we" did not reach it, but Roberts did; he went on at length about the dubious constitutionality of the Act. (He was so eager to do so that he began his opinion with this: "The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act.")
He anticipated his claim in Shelby County that the coverage criteria were obsolete: "These improvements [in minority voting] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. . . . It may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs." No authority was cited.
Then there was the matter of states’ rights: "The Act also differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’ " For that proposition, he cited United States v. Louisiana (1960), in which the state asserted sovereignty as a defense to a claim by the federal government (and lost), and Texas v. White (1869), which referred to state sovereignty under the Articles of Confederation. One might sense a reach. The Chief Justice liked those inapposite sources so much that he resorted to them again in Shelby County : "Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States, citing again, Louisiana and White , along with Northwest Austin and, so no one would miss the point, italicizing "equal."

However, the claim that equal treatment is required is as unsupported as is sovereignty. The Court held in South Carolina v. Katzenbach (1966), while ruling on a challenge to the constitutionality of the VRA, that "The doctrine of the equality of States . . . does not bar this approach [of §4], for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." (The dissent in Shelby County pointed out examples of unequal treatment). 
In Shelby, Roberts attempted to avoid that ruling by, again, citing an irrelevant decision and himself: "Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’ Coyle v. Smith" He acknowledged that Coyle concerned the admission of new States, and that Katzenbach had limited the principle of equality to that context. Nevertheless, "as we made clear in Northwest Austin , the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States." Justice Roberts doesn’t give up easily but, whether or not one attaches "sovereignty" to the claim, unequal treatment doesn’t invalidate VRA §§4 and 5.
The extent to which Shelby County depends on Northwest Austin (and the regard Roberts has for his own views) are exemplified by this passage in Shelby, rebuking those (Ginsberg, Breyer, Sotomayor and Kagan) who dissented: "[T]he dissent analyzes the question presented as if our decision in Northwest Austin never happened." By "decision," he means his dicta. "For example, the dissent refuses to consider the principle of equal sovereignty, despite Northwest Austin's emphasis on its significance." It ignored "the fact that Northwest Austin requires an Act's ‘disparate geographic coverage’ to be ‘sufficiently related’ to its targeted problems . . . ." The dissent also overlooked Austin’s emphasis on the progress made: "Although Northwest Austin stated definitively that ‘current burdens’ must be justified by ‘current needs,’ . . . the dissent argues that the coverage formula can be justified by history. . . ." Weren’t you listening? I stated definitively.
The Tenth Amendment Center advocates nullification of federal laws by state legislatures. The Chief Justice and his allies practice nullification on the Supreme Court.
11. The precedential status of a plurality opinion does not seem to be clear. The arguments about the renewal of the VRA seem to have taken the plurality opinion in as the law.
12. The memo, Roberts to the Attorney General, "Voting Rights Act: Section 2," is available at
13. Memo, February 23, 1982, John Roberts to Wm. Brad Reynolds, Assistant Attorney General, Civil Rights Division: "Material To Be Delivered Today To Senators on Voting Rights Act." It is included in