August 10, 2013

On June 25, the Supreme Court gutted the Voting Rights Act. On the same day, Texas announced that it would proceed with voter-ID and redistricting changes which would have required preclearance. Within a month, the North Carolina legislature passed a repressive voting law, and Florida announced this week that it will resume its voter purge. All of these actions are likely to suppress minority voting. They were taken with such speed that they mock the Court’s pretense that those states and others covered by the Act do not now discriminate. Texas was covered by the Act (except for two utility districts), along with forty counties of North Carolina and five in Florida. Those states have made clear that the Act should cover them entirely.

Nothing can be said in defense of the states’ actions, but the greater blame must be assigned to the Court, which not only made a bad decision — both in terms of reasoning and result — but extended a string of decisions which raise doubts about its competence and integrity.

In a system such as ours, respect for the decisions of the Supreme Court is crucial. This is so because we have a written constitution, which tends to convert political issues into matters of Constitutional interpretation. It is so because we are a litigious society, and tend to think of all issues as legal issues. There must be genuine respect, not merely acquiescence or resignation, if there is to be political peace, confidence in legal outcomes and stability of government. No such respect is possible now. The Court has become philosophically polarized, its conservative wing — Roberts, Scalia, Thomas and Alito, often made a majority by the addition of Kennedy — has become politically oriented and activist, and its legal reasoning would embarrass a first-year law student. Consider District of Columbia v. Heller (guns), Citizens United v. Federal Election Commission (money in elections) and Shelby County v. Holder (the Voting Rights Act). Consider the strange Roberts opinion in Nat’l Fed. of Ind. Business v. Sebelius (health care).

Three of the present Justices — Scalia, Thomas and Kennedy — have had little credibility since Bush v. Gore .[66]  That decision was so blatantly political, so clearly result-driven, that the Court’s opinion had to note that it was "limited to the present circumstances."[67]  In other words, it was so indefensible that it had to be labeled "good for this day and trip only," not to be cited as precedent. Justice Stevens summed up the issue in his dissent in that case:

It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. . . . Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

He added that "[t]ime will one day heal the wound to that confidence that will be inflicted by today's decision." Time certainly hasn’t restored confidence yet, and probably won’t until there is a change in the Court’s personnel.

We can’t blame Roberts and Alito for that decision, but the converse is true: Bush v. Gore put Bush in the White House and he put the terrible twins on the Court. 

8/12/13: The N. Carolina governor signed the voting bill today

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66. They were joined by former Justices Rehnquist and O’Connor.
67. Bush v. Gore, 531 U.S. 98 (2000), per curiam opinion