The Roberts Court Is Toxic for the Nation

When John Roberts went before the Senate Judiciary Committee to receive its blessing for his ascension to the U.S. Supreme Court, he described his role on the Court to be like a baseball umpire calling balls and strikes. Chief Justice Roberts has since moved one pace up and donned the gear of the catcher, so he can call the signals for what the pitcher should throw and frame the target to which the pitcher should throw.

Roberts also described himself as colorblind in regard to race and ethnic origin. In a way, this claimed stance is a corollary to his umpire imagery, as it positions him as being neutral when it comes to cases involving blacks and Hispanics — possibly women as well. But if nine justices with Roberts’ views had been on the Court when Brown vs. Board of Education was decided, the vote would have been 9 to 0 for deciding that school segregation was constitutional. Later, when the Court ruled on civil rights matters, the same Court makeup would have resulted in fewer black or brown faces in the nation’s firehouses and police forces.

When a case was brought before the Court on the showing of a documentary on Hillary Clinton, those bringing the case asked the justices to rule on the narrow issue of whether showing the documentary was legal, a Court majority enormously expanded the case to, in effect, give corporations personhood and allow them to make unlimited contributions to political campaigns. Enormous sums of corporate money flowed into the 2012 national election, without attribution as to specific source.

When Chief Justice John Roberts became the swing vote in upholding a mandatory fee or tax in the Affordable Care Act for those who refuse to purchase insurance, he was hailed by those ACA supporters who generally view Roberts’ votes as being ideologically-based; however, some legal experts raised a warning that Roberts’ opinion contained language potentially narrowing the power of Congress to  regulate interstate commerce. One interpretation was that Roberts was raising the hope of lessened future regulation of business to mollify conservatives angered by his decision on the ACA.

The U.S. Supreme Court recently held hearings on Section 5 of the Civil Rights Act. Questions raised and comments made by the four-justice conservative bloc, along with Justice Anthony Kennedy, who is frequently the swing vote in the many 5 to 4 decisions coming out of the Roberts-led Court, send a signal that this vital piece of civil rights legislation will be overturned.

Representative John Lewis (D-GA) has been described as listening in dismay as the conservative justices described Section 5 as an antiquated unfringement on state sovereignty, treating some states differently from others based on old data from the 1960s and ’70s. He told a reporter that he almost cried when Justice Antonin Scalia likened the law to a “perpetuation of racial entitlement.” To Kennedy and his conservative colleagues, states with a historic record of discrimination — such as Lewis’s home state of Alabama, where the current challenge originates — are now the ones being discriminated against.” Justice Kennedy asked: “If Alabama wants to have monuments to the heroes of the civil rights movement; if it wants to acknowledge the wrongs of its past, is it better off if its an… independent sovereign or if its under the trusteeship of the United States government?” [1]

Justice Kennedy doesn’t sem to realize that the issue is voter suppression. Voter suppression never came up during the oral arguments. The justices did not hear, for example, that six of the nine states fully covered under Section 5, including Alabama, have passed new voting restrictions since 2010. Nor did they hear that the Justice Departemnt and federal courts blocked four major discriminatory voting changes from becoming law last year under Section 5 (voter ID laws in Texas and South Carolina, early voting cutbacks in Florida and redistricting maps in Texas). [2]

Justice Kennedy suggested that Section 2 of the Voting Rights Act might be substituted for Section 5, but Section 2 forces plaintiffs to show that a voting change is discriminatory after it has gone into effect. In contrast, Section 5 stops a violation before it occurs, while Section 2 can redress only after the violation happens. One puts the burden on the perpetrator; the other on the victim.

Kennedy said in 2009: “Section 2 cases are very expensive. They are very long. They are very inefficient.”  It should be kept in mind that without Section 5, discriminatory voting laws in places like Florida, South Carolina and Texas would have been on the books in 2012 and could have been challenged only after years of costly and complex litigation.

Chief Justice John Roberts may be able to challenge Justice Antonin Scalia for the most asinine and troubling question or comment during the hearing. Roberts asked Solicitor General Donald Verrilli: “Is it the government submission that the citizens in the South are more racist than cilizens in the North?” The honest answer, especially in political terms, is yes. Voter suppression attempts are more frequent in the South, anti-minority views are more ubiquitous, minority officeholders have less power relative to their constituent populations, electoral maps are more segregated, and racially polarized voting is more extreme than in other parts of the country.

If we want to tout bipartisan agreement on major  issues, Section 5 has been overwhelmingly reauthorized four times by Congress and signed by four Republican presidents.

If Section 5 of the Voting Rights Act is overturned, it will be just the latest toxic shock administered to the nation by the Roberts-led Supreme Court.




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