The VRA Is DOA

Let's play make-believe.  Pretend you're a professional music critic.  You've written a column saying that rap. a predominantly black pop form, is not music.  A civil rights lawyer sues to have you fired from the music magazine you work for, citing a racist subtext in your column and implying that you are a bigot.  But you've also written numerous reviews heaping all sorts of acclaim and praise on numerous black musical artists, none of whom are rappers.  The judge throws out the civil rights lawyer's suit, saying that he can't prove racial bias on your part.  Now, here's the clincher - you in fact are a bigot.  You love black music, but you would never seek black friends, live next door to a black family,  or let your son marry a black woman, not even Iman.  You are a total racist, but no one can prove it because you're very good of keeping your bigotry to yourself.

Well, apply that same idea to the standard the Supreme Court in limiting the Voting Rights Act of 1965 to the point where it's just a meaningless piece of paper enshrined in the Lyndon B. Johnson Presidential Library, and you understand why it's so odious and viciously cruel.  The Court ruled in Louisiana v. Callais this past week that a plaintiff charging the the voting rights of a minority group have been violated because minority voters have been gerrymandered across districts that make it impossible to elect one of their own to the state legislature or the U.S. House of Representatives has to show direct evidence that the gerrymandering was racially motivated.  The plaintiff can't do that.  The gerrymandering can always be explained away as being a need for bipartisan balance or some rubbish like that.  But the truth is that Republicans gerrymander districts to ensure that as many Democratic voters are spread out over as many districts as possible to keep a Republican legislative or U.S. House majority in a state; and in the Deep South, most Republican voters are white and most Democratic voters are black.  

And there are several Republican-dominated states elsewhere, like in the Rust Belt, where Democratic-leaning minority voters are confined to a handful of urban and inner suburban districts while Republican-leaning white voters dominate the more numerous districts elsewhere.  Black people can still vote - poll taxes and literacy tests have pretty much gone the way of the Studebaker -  but whom they vote for, usually a black candidate, is a lot less likely to win.  This is even assuming they can remain on the registration books, as many jurisdictions that no longer need preclearance to secure minority voting under the Voting Rights Act have purged black voters with impunity. 

In that spirit, Louisiana, the victor in the Supreme Court case, canceled primaries for its U.S. House elections pending a redistricting that will likely eliminate one of its two black-majority districts.

U.S. Supreme Court Chief Justice John Roberts (above) is no stranger to the conservative desire to eliminate the Voting Rights Act.  He has been working to eliminate it since 1980, the year Reagan was elected President and a 25-year-old Roberts was clerking for the then most conservative justice on the Supreme Court, William Rehnquist, whom Roberts succeeded as Chief Justice.  Roberts and other conservatives have been playing the long game to push a conservative agenda for decades, and their long hard work has pretty much paid off.  The only people who get screwed are the innocent.  Because if black people get thrown off the voter rolls, can vote but may not vote knowing they their votes could get canceled out, or are denied representation or political power, there's no one in Congress or the legislature to represent their own interests - some which likely overlap with those of white voters.

Democratic states are likely going to redistrict their own House seats to counteract Republican states gerrymandering their minority, Democratic-leaning districts out of existence to cancel any advantage Republican states get from their own shenanigans, and New Jersey is looking at doing so.  Governor Sherrill has suggested that two of the three GOP districts in the state could be gerrymandered out of being.  But New Jersey and several states may not get to do so until 2028 or 2030, and the census in 2030 might move even more House seats to Republican-leaning states in the Sun Belt (a trend that has been unstoppable for seventy years).  If Democrats can compete more effectively in these Sun Belt states - states Democrats gave up on years ago - they might be able to stanch the bleeding, and they might be able to elect a more progressive Democratic President and Congress in 2032 - without a Voting Rights Act, and largely on the strength of white voters - and accordingly restore the Voting Rights Act while dealing with other right-wing decisions handed down by the Roberts Court.

Like Citizens United. 

If we have to, we can elect a progressive Congress and administration without guaranteed voting rights for all citizens no later than 2032.  After all, Americans managed to do that in 1932.

And by the way, if anyone is wondering . . . no , I don't like rap, of course, but no, I'm not racist.  I think I've proven that many times on this blog.  And come on, if I were racist, do you think I would have written such a long post bitching about the gutting of the Voting Rights Act??  

Run With the Pack

 I'm not referring to the Bad Company song.

The last attempt to expand the Supreme Court was made in 1937, when President Franklin Roosevelt sent a bill to Congress that, according to a formula encouraging but not requiring Supreme Court justices to retire once reaching a certain age, would allow the President to appoint six additional justices.  Roosevelt tried unsuccessfully to expand the Court to appoint enough justices to counterbalance the conservative majority under Chief Justice Charles Evans Hughes, which had overturned various New Deal programs.  Ironically, Roosevelt ended up appointing justices for all nine seats, including the promotion of Associate Justice Harlan Fiske Stone to replace Chief Justice Hughes, and Hugo Black - who served into the early 1970s - was his first appointment.  Black was appointed a few months after the Court-packing effort failed.

Yeah, well, its time to revisit the idea again.

The current Supreme Court demonstrated that it is all about power and not about jurisprudence.  Its idea of originalism is being taken to the extreme as the conservative majority has been overturning precedents they feel were wrongly decided because the specifics in those precedents are not reflected in the text of the Constitution.  The conservatives advocate judicial restraint but have shown no restraint in overturning decisions they felt were overreaches.  You don't correct what you perceive to be overreach with overreach of your own.

As we're waiting for the final rulings from the Courts 2023-24 term (including the Trump immunity decision) tomorrow, I could go on and on and on and on until I run out of bandwidth about the flurry of its most recent decisions, but I should focus on the overturning of the Chevron principle, which was a unanimous Supreme Court ruling in the mid-1980s declaring that agencies, not courts, should decide the ambiguities in government regulations.  It was a victory for Chevron, the oil company that brought the suit before the Court, when lower courts had tried to set the standards for how Environmental Protection Agency regulations should be administered to Chevron's detriment in extracting oil from the earth.  Anne Burford, the pro-business EPA administrator that President Ronald Reagan had installed in 1981, agreed that the courts should not tell agencies how to do their jobs - and her agency, at least, was accused of doing its job more to help business than people.

As it turned out, the Chevron principle worked out wonderfully, for it allowed career agency workers - civil-service employees who did not answer to presidential administrations - to uphold the spirit of regulations and statutes even when a presidential administration did not.  Supreme Court Justice Antonin Scalia thought the decision was prudent on the issue of resolving ambiguous rules because it would curtail the power of federal judges who would overreach to threaten private interests based on personal politics and not the law.

Justice Scalia, for all of his faults, was largely a man of integrity and a serious legal scholar - that's why he was unanimously confirmed by the Senate in 1986 with one member absent.  He was not a hack like today's conservative jurists.  They overturned the Chevron ruling with the three liberal justices in dissent.  Federal agencies, Chief Justice John Roberts wrote, "have no special competence in resolving statutory ambiguities. Courts do." That may be, but federal agencies do have special competence in the areas of expertise that statutes govern.  Anne Burford certainly would have agreed with that, saying of criticism of her handling of the job of EPA administrator, "Nobody can be that wrong, all that much, all the time." 

Justice Neil Gorsuch agreed with Chief Justice Roberts, writing in concurrence that this ruling "returns judges to interpretive rules that have guided federal courts since the Nation's founding."  It is extremely significant that Justice Gorsuch would side with Roberts and would not have sided with Scalia, whose seat he took, and especially not with Anne Burford, who died in 2004, because, well, before Burford married her second husband in 1983, she went by her first husband's name - Gorsuch.

Yes, Neil Gorsuch is the son of Anne Burford.  

The little snot.

Ironically, Gorsuch himself turned out to be the poster boy for why the Chevron ruling that Scalia and, later, generations of environmentalists championed was actually a good idea.  In writing in favor of pausing a Biden Administration program to curb smog being generated in one state and wafting over another, he confused nitrogen oxide, a harmful gas, with nitrous oxide, a harmless gas.  Justice Gorsuch clearly demonstrated that judges are not the ones who should be resolving ambiguous text in federal statutes. He also demonstrated with equal clarity that he's as dumb as the President who appointed his mother to run the EPA.  Campaigning for the Presidency in 1980, Ronald Reagan also confused the two similar-sounding gases with each other and based on his confusion the suggestion that trees caused more pollution than cars.  

Ladies and gentlemen, here's the only Sequoia that ever caused more pollution than my VW!

House Democratic leader Hakeem Jeffries lamented that, until the reversal is reversed,  Congress will have to write more clear government regulations less prone to ambiguity and multiple interpretations.  The only problem is that Congress keeps demonstrating its inability to do so.

And that's why we have to run with the idea of packing the Court.

And if we don't, I'm leaving here.  You won't even see me, no, no . . . for dust. 

Movin' on . . . movin' out . . .  

A Big Little Victory

The news about the assault on voting rights and democratic institutions has been bad for so damn long that any good news on the subject is welcome.  And the Supreme Court delivered a small but important victory in the Moore v. Harper case out of North Carolina that proposed what reactionaries call the "independent state legislature theory," a theory that is the legal equivalent of supply-side economics.

North Carolina House Speaker Timothy Moore, a Republican, filed suit claiming that the state legislature, in redrawing U.S. House districts, had the right to decide the rules for electing federal officers in any way, shape or form that they wanted to - without oversight from the state Supreme Court.  The U.S. Supreme Court ruled, 6-3, that Moore's theory violated the system of checks and balances and declared that state judiciary has every right to counteract the state legislature to curb excessive partisan gerrymandering.  Chief Justice John Roberts wrote the majority opinion, joined by conservative justices Brett Kavanaugh and Amy Coney Barrett and the entire liberal wing - Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.  This decision not only allows the judiciary to intervene in state redistricting cases involving U.S. House of Representatives; it also negates a more sinister idea, that states can reject the majority popular vote for one slate of presidential electors and instead allow the slate voted down by the people to cast ballots in the Electoral College.  It was an idea that Trump tried to get Democratic electors rejected in states that Joe Biden carried in the 2020 presidential election.  

Chief Justice Roberts (above) seems to have forged a consistent view regarding voting from a conservative standpoint.  He opposes the Voting Rights Act as it was written in 1965 because he sincerely believes that making racial preferences for voting based on past racial discrimination treats voters of a particular race as part of a group and not as individuals and that the rights of the individual must always come before the rights of a collective group based on skin color or ethnicity.  It's not a stupid idea; it's just wrong.  But while rejecting group rights in favor of the individual, the chief justice also believes that the only way individual rights can be preserved is through the checks and balances that Timothy Moore so blatantly ignored. 

Because of his ideological consistency, Roberts saved the principle of free elections from an extremist minority hell-bent on overturning the will of the people.  Alas, that minority, besides Justice Neil Gorsuch, also includes noted billionaires' bitches Samuel Alito (who, as a former resident of my hometown, continues to make my hometown a laughingstock) and Clarence Thomas.     

Supreme Consequence

The Supreme Court began hearing arguments last week on whether or not the Affordable Care Act is constitutional without the individual mandate, which the Republicans repealed in an effort to weaken the law so it could be killed.

But Chief Justice John Roberts took issue with the idea that taking out a part of the law to make it violate the Constitution.  He strenuously opined that the Democratic Congress that passed it never intended to allow such a thing to happen, even as the Republicans never repealed (or replaced) that whole damn law to begin with.   

"I think it's hard for you to argue that Congress intended the entire act to fall if the mandate was struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the act," Roberts told the attorney representing the state of Texas, which is one of several states pursuing the case against the law. "I think, frankly, that they wanted the Court to do that, but that's not our job." 

And whether or not newly appointed Justice Amy Coney Barrett agrees with that, one Trump appointee apparently does - Justice Brett Kavanaugh, who seemed to concur with the Chief Justice over the intentions of the legislative branch.

For obvious reasons, I'm not sure I can trust Justice Kavanaugh, at least not completely, at this moment, but Chief Justice Roberts, despite his ideological leanings, has proven himself to be a decent and fair man, and he holds a lot of sway in prickly issues like regulating health care.  After all, he saved the law in 2012.  Right now, it looks like the law may be upheld, mandate or not.  And President-elect Biden will almost certainly try to restore the mandate and build further on the law . . . even as Mitch McConnell, who is likely to remain Senate Majority Leader, will almost certainly to have a problem with that.  A compromise deal between Biden and McConnell could stave off the case by reinstating the mandate and allowing Congress to set the penalty.  Whatever happens, those who benefit from the Affordable Care Act can probably breathe a little more easily than the could in October.     

Supreme Strikeout

So how are all of these Supreme Court rulings working out for Trump?  Okay, let's review:

This month, the Court ruled that the 1964 Civil Rights Act, while originally written and passed with blacks in mind, protects any underserved and underprivileged minority, hence it bans discrimination against homosexuals, bisexuals, transsexuals, and any other sexual you can think of.  (LGBT?  Sorry, I'm not into unpronounceable acronyms.)  Justice Neil Gorsuch -  a Trump appointee - wrote the majority opinion.

The Court also ruled that the state of California does not have to acquiesce to the federal government and provide state troopers or any other forms of assistance to enforce immigration laws.  It's a solidly conservative opinion, upholding the rights of the states guaranteed by the Tenth Amendment.

And finally, the Court ruled against Trump's effort to end the Deferred Action for Childhood Arrivals program, meant to help immigrant children brought to this country in infancy by their parents stay in the U.S.  The kids covered by the program aren't out of the woods yet, but Chief Justice John Roberts isn't going to let Trump end the program as he wants to, because the procedure Trump has followed is unconstitutional.

And this all happened within a week.

Once again, we were reminded that the Supreme Court is independent, it answers to no President, and lifetime appointments are not necessarily a bad thing.

Just remember to vote for Biden in November.  Because, all of that notwithstanding, Justice Ruth Bader Ginsburg is 87 years old.