WHAT Did They Say About Judicial Activism?

Justices, image from supremecourt.gov

Remember when we used to hear about the “judicial activism” by a left-leaning court?

Sounds kinda quaint now that the 6-3 Republican majority on the Supreme Court (with no less than three Trump appointees, thanks to Mitch McConnell) has gone even further toward nullification of the 1965 Voting Rights Act and protecting the dark money that undermines the legislative process (Brnovich v. DNC; Americans for Prosperity v. Bonta).

Chief Justice Roberts has made known his contempt for the Voting Rights Act since his days working in the Reagan Administration.

He’s pretended that the provisions were no longer needed because our society has moved so far toward equality (Shelby County v Holder, 2013).

In that previous attack on Section 5 of the act, which freed states that had clearly discriminated based on race from having to obtain preclearance from the Justice Department, he’d said that Section 2 of the landmark legislation still stood as protection anyway.

Now that Section has been compromised as well. What’s more, by choosing Justice Samuel Alito to write the majority opinion, Roberts has done away with any artifice.

Alito seems to be the most rabidly partisan sitting justice, and he’s made it clear he believes the Big Lie that Trump won the election.

The Supreme Court of the United States has let stand two Arizona laws that were factually found to have greater impact on Black, Latino, and Native American voters than on white voters: to deliver someone else’s vote to the polls (unless a caregiver), and to accidentally vote in the wrong precinct.

Even if those laws disproportionately affect minorities, Alito wrote, they don’t impose an undue burden.

And if Congress so much as considers amending the Voting Rights Act to make it easier for minority plaintiffs to sue, any such test “would deprive the states of their authority to establish non-discriminatory voting rules,” which might be unconstitutional.

What I find most appalling is that, in legitimizing charges of fraud in an election that by all reputable sources did not exist in the 2020 election, the majority has winked at the attempted coup to overturn our democracy.

“We Are Reliving the Reconstruction Years after the Civil War” 

Historian Heather Cox Richardson gives a quick overview of good and mostly bad milestones from before the Civil War to the 1890s, when Jim Crow laws begun in Mississippi swept the nation.

“These laws stayed in place for 75 years. Then, in 1965, Congress passed the Voting Rights Act, designed to undo voter suppression laws once and for all. The VRA worked.

“In Mississippi in 1965, just 6.7% of eligible Black voters were registered to vote. Two years later, that number was 59.8%, although there was still a 32-point gap in registration between Blacks and whites. By 1988, that gap had narrowed to 6.3%, and in 2012, 90.2% of eligible Black residents were registered compared to 82.4% of non-Hispanic whites.
“The Voting Rights Act was considered so important that just 15 years ago, in 2006, Congress voted almost unanimously to reauthorize it…

Justice Elena Kagan’s Dissenting Opinion
(Begins at 45; reformatted slightly for readability; emphases mine):

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out.

“Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other.

“If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary.

“Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually ‘contriv[ed] new rules,’ mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966).

“Because ‘Congress had reason to suppose’ that States would ‘try similar maneuvers in the future’— ‘pour[ing] old poison into new bottles’ to suppress minority votes. Ibid.; Reno v. Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Souter, J., concurring in part and dissenting in part).

“Because Congress has been proved right.

“The Voting Rights Act is ambitious, in both goal and scope. When President Lyndon Johnson sent the bill to Congress, ten days after John Lewis led marchers across the Edmund Pettus Bridge, he explained that it was “carefully drafted to meet its objective—the end of discrimination in voting in America.” H. R. Doc. No. 120, 89th Cong., 1st Sess., 1–2 (1965).

“He was right about how the Act’s drafting reflected its aim. ‘The end of discrimination in voting’ is a far-reaching goal. And the Voting Rights Act’s text is just as far-reaching. A later amendment, adding the provision at issue here, became necessary when this Court construed the statute too narrowly.

“And in the last decade, this Court assailed the Act again, undoing its vital Section 5. See Shelby County v. Holder, 570 U. S. 529 (2013). But Section 2 of the Act remains, as written, as expansive as ever—demanding that every citizen of this country possess a right at once grand and obvious: the right to an equal opportunity to vote.

“Today, the Court undermines Section 2 and the right it provides. The majority fears that the statute Congress wrote is too “radical”—that it will invalidate too many state voting laws. See ante, at 21, 25.

“So the majority writes its own set of rules, limiting Section 2 from multiple directions. See ante, at 16–19. Wherever it can, the majority gives a cramped reading to broad language.

“And then it uses that reading to uphold two election laws from Arizona that discriminate against minority voters. I could say—and will in the following pages—that this is not how the Court is supposed to interpret and apply statutes. But that ordinary critique woefully undersells the problem.

“What is tragic here is that the Court has (yet again) rewritten—in order to weaken—a statute that stands as a monument to America’s greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about ‘the end of discrimination in voting.’

“I respectfully dissent.”

The Focus Must Move to Congress–and to Us

Where do we go from here? We certainly don’t give up.

Marc Elias from Democracy Docket encourages us to redouble our efforts (“SCOTUS tackles voting rights in final decisions of term, On the Docket newsletter 7/2/2021”):

“By ruling that neither law violates Section 2 of the VRA, the Court leaves these laws in place for future elections in Arizona… 

“More than fifty years ago, the Supreme Court said that ‘The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.’ 
So, we must pick ourselves up, dust ourselves off and recommit ourselves to fighting every day to protect democracy.”

President Biden said:

“Today’s decision by the Supreme Court undercuts voting rights in this country and makes it all the more crucial to pass the For the People Act and the John Lewis Voting Rights Advancement Act to restore and expand voting protections.”

“Our democracy depends on it.”

Marc Elias and Heather Cox Richardson stressed the same point.

And Senator Amy Klobuchar, who chairs the Senate Rules Committee, which has jurisdiction over federal voting rights, has said publicly that she’s taking her committee on the road this summer.

“Failure [to pass protective legislation] is not an option.”

She noted that her committee now knows to rewrite the legislation to ensure no one overturns the certified election results.

Rethinking How Voters Must Vote?

New York Times columnist Charles M. Blow, who cites not only outright suppression, but also errors and incompetence as barriers, tells us how to surmount them:

Replace the thinking about “one person, one vote,” he advises, with the concept of voting as a “nest of ants, a swarm of bees, a brigade of soldiers attacking an enemy…Not everyone who should be able to cast a ballot will be able to. And, not every ballot cast will be properly counted.”

We may not like that idea, and we can continue to organize and fight for legislation and court rulings.

But we must vote in droves despite the oppression.

Voters must be taught that swarming the polls, overwhelming them, may well be the only real shot at winning: a single movement, an irresistible deluge of votes.”

I think we need to swarm twice: once to persuade legislators to vote for the voting protection laws. There will be town meetings and demonstrations throughout the US this summer. Or we can just pester our legislators by phone…

Then swarm again to flood the polls by voting at all levels.

Are you ready to swarm?


28 thoughts on “WHAT Did They Say About Judicial Activism?

  1. These recent decisions are scary and have such far reaching implications for the figure of our country. I worry for my brown boys and their future as well as my mixed race nieces and nephews and their children. There are still some effective checks and balances between the other two branches of government staffed by genuine people of conscience; however, Supreme Court precedence is a pretty significant hurdle.

    Liked by 4 people

    1. Scary, for sure, Abigail, and downright un-American! I hate the fact that you and millions of others must worry about your children’s future. We all should be—as you say, they’re our country’s future.
      But I continue to hope that an aroused citizenry will push us forward—and the young adults of today, more unburdened by animus about the “other” and concerned about justice and climate change, provide me with optimism.

      Liked by 2 people

      1. So true!! My boys at 8 and 6 know a whole lot more than I did at that age. We frankly and openly debate and discuss so many different issues and include them. Not sure how much their teachers will love the debate skills they are honing in the fall but to teach them to think critically, to argue every side and to make their own decisions for themselves, this is a life goal I must reach before MBC kills me. Good thing law school made this easier to accomplish!

        Liked by 2 people

  2. The idea that states can restrict the vote as they will justifies everything states ever did to discriminate against prospective voters. “No state shall make any law which shall abridge the privileges or immunities of any citizen of the United States;…” –Fourteenth Amendment “Abridge” means to restrict a right or privilege.

    Liked by 4 people

  3. Annie, this was a very puzzling ruling as the law in Arizona reeks of unconstitutionality and cheating. Yet, living in NC, the Republicans have been with “surgical precision” cheating on the Voter ID law and gerrymandering. Each set of laws was thankfully ruled unconstitutional which led to another round of how much cheating can we get away with. The “surgical precision” comment was from a judge’s ruling. Have Dems cheated in the past? Yes, but nothing like this.

    The irony of all of this is these states are using the former president’s planned and staged election fraud claims which were “always bulls**t” per his attorney general which led to his firing. Funders of the election fraud litigation want their money back since winning one case and losing over 60 does not even come close to the Mendoza Line in baseball (batting less than .200) and makes them feel lied to. They were.

    So, more cheating has been introduced because the former president’s fragile ego cannot handle losing, so he must claim foul. And, his supporters must go along with this. Why, we must ask? Because they know the demographics do not work in their favor, so they must suppress the vote. They are using the bogus election fraud story as a cover for the suppression. This would be a good novel if it were not true. It is non-fiction. Keith

    Liked by 3 people

    1. Unfortunately, though the ruling may be puzzling, it was not unexpected. Some court-watchers expressed a bit of relief that the majority didn’t just throw out Section 2 of the VRA entirely.

      And though trump’s Big Lie has been a convenient vehicle, Roberts and the Republicans, with their dark money right-wing donors, have been moving down this odious path for decades.

      Liked by 1 person

      1. Annie, what disappoints is the court will give you hope with one ruling and then just drop the ball. This case is overt discrimination and it was ruled constitutional. It rivals the atrocious rulings allowing greater influence of dark money in elections across the country. Keith

        Liked by 2 people

  4. Hopefully this puts to rest the false assertion that the SCOTUS is somehow an “impartial” interpreter of the Constitution. Always was and always will be a partisan political organization. Which is why term limits of no more than 20 years should be in place. No lifetime appointments. Each generation deserves new justices who are cognizant of the changes to society which demand changes to the interpretation of the Constitution.

    I taught Government for over 25 years and one idea I tried to impress upon my students was the meaning of the Constitution. What does the Constitution say about any particular issue? What do the words really mean?

    The answer: Whatever the current SCOTUS decides the words mean.Period.

    Liked by 4 people

    1. I think you make a good case for twenty year term limits, Joseph. The question that’s unclear to me is the generational awareness. Gorsuch, Kavanaugh, and Barrett do not seem to be demonstrating generational awareness. They’re just perpetuating the vision that Koch et al began foisting on our body politic decades ago, methinks.

      Liked by 2 people

    2. Lifetime appointments were intended to insure the justices independence; this seems to me a reasonable provision. William O. Douglas served for 36 years–free speech would have lost a tireless advocate, had his term ended during his lifetime.

      To an extent The Constitution is at fault–the assumption that there once were 13 independent states and now are 50 isn’t reasonable, if only because some senators represent relatively few people.

      Liked by 2 people

      1. If judicial independence isn’t a reality, limited tenure might not be better. Short term appointment might mean justices would be looking out for their future employment rather than upholding The Constitution. I think the problem is more irresponsible appointments than unlimited tenure.

        Liked by 1 person

  5. Mitch McConnell’s refusal to consider Merrick Garland’s nomination, and then his rush to confirm Amy Coney Barrett, left us with a Supreme Court majority intent on preserving white supremacy and helping the rich get richer. (Clarence Thomas, despite his race, in indeed a white supremacist.) I’ve always been wary about the strategy of packing the court, but considering the recent anti-democratic trajectory on today’s SCOTUS, that might be the way to go. PS: If Alito really believes the former guy’s big lie, he’s a fool who is totally unqualified to sit on the nation’s highest court.

    Liked by 3 people

    1. The GOP has packed the court by preventing an Obama appointment and rushing through the Barrett appointment. There is no Constitutional number of justices required. The number has changed at least 6 times since 1790.Time for another change. The SCOTUS should reflect society. We have 340 million people and right now only 5 of them can determine what the law means. INSANITY.

      Liked by 2 people

    2. I agree, Gail. And I probably should have said that Alito either believes the Big Lie or is happy to use it to substantiate his opinions—though I think it’s likely he believes it, and he’s probably not the only one. Unqualified? I’ll buy that.

      Liked by 1 person

  6. If there were ever a need of proof of the importance of the power to nominate Supreme Court justices when choosing a President to vote for, what the current Court has done to undermine the Voting Rights Act speaks volumes. Coming up, ending or weakening further women’s right to abortion access.

    Liked by 3 people

  7. It was sickening to read about that decision in the news, but considering who is now on the supreme court not surprising. I’m remembering all the controversy re the poor choices of confirming Kavanagh and more recently Barrett – Trump’s lasting legacy. I wish I could help you swarm, but I like the concept!

    Liked by 1 person

  8. I agree, many people undermine the power of voting but it is in fact a great tool that we have at our disposal. It’s such a shame that lately it feels like sometimes we’re taking steps backwards when it comes to getting everyone’s voices heard. We must do everything we can to leave our touch on important matters in our country. I don’t know what the voting age is the U.S., but if I was over there I would be voting as much as possible. I wish I could’ve voted for Brexit but my family had already moved out of the U.K. by then which was annoying because we were still British nationals living abroad so the new rules greatly affected us. [and I was way too young to anyway].


  9. Late to the conversation here, but yes: scary and un-American, at least as I conceive of America. And infuriating. As to the vote, as some readers here have commented, I saw an older documentary recently, The Great Hack, which explained in some detail how the vote gets manipulated. Scary and un-American, for sure.

    Liked by 1 person

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