Thursday, June 27, 2013

Voting Rights ruling was 'legislating from the bench'

I don't often comment on Supreme Court decisions because they are so blatantly political to me, albeit dressed up in pomp and black robes as something serious, deliberative and solomonic.  As my Uncle T., a lawyer and dyed-in-the-wool conservative, once told me, he can't see much that's legal or constitutional in the way the Supreme Court operates.  I tend to agree with him.  

It's because they are all utterly political appointees, justices whom the appointing President thinks he can rely on to interpret the Constitution with a particular ideological bent, the facts be damned.  Most of the time the Supreme Court's majority can't wait for certain controversial cases to hit their docket so that they can affect the political direction of our country.

That said, I think the SCOTUS went way too far on Tuesday by striking down Section 4 of the 1965 Voting Rights Act.  This time they clearly usurped the powers of Congress.

The power of Congress vested in them by the Constitution is not the power to be right, it's the power to be wrong. One can argue that Congress was wrong to overwhelmingly uphold the Voting Rights Act "coverage formula" in 2006, but then it was wrong with serious bipartisan conviction: 390-33 in the House and 98-0 in the Senate.  Congress provided 15,000 pages of documentation in 2006 to show that voter discrimination was still happening in the jurisdictions that the coverage formula designated for pre-clearance.

This week the U.S. Supreme Court said to hell with that.  The high court majority went beyond the Constitution to examine what it felt were facts on the ground that made the law unnecessary.  I'm sorry, but that's not the high court's job.  We have lots of unnecessary and stupid laws.  That's Congress's prerogative to make them; it's our job every 2 years to vote out the bums to replace or repeal them.  What the "anti-activist judges" majority did on Tuesday was to "legislate from the bench," pure and simple.  In doing so they are were not only hyper-partisan, they werehypocrites against their own judicial philosophy!

Even so, those facts on the ground are debatable, even without study, therefore the SCOTUS should not have so cavalierly struck down a law passed by Congress. What do I mean, without study?  Well, the majority said that the Voting Rights Act has clearly achieved its goal, therefore it was no longer needed. Yet one could argue that without it, racial discrimination against minority voters could easily spring up again.  This possibility is certainly imaginable, and certainly not possible to exclude, logically, yet the Supreme Court majority did just that and excluded it.  "We know everything's going to be fine from now on," they basically said.  

Also, Chief Justice Roberts said the SCOTUS "warned" Congress in 2009 to update the formula by which it determines a history of voter discrimination, and that with case of Shelby County [Alabama] v. Holder hitting the court's docket in 2013 without any action by Congress, the high court had no choice but to strike down the law.  But think about that for a second.  We have an historically gridlocked Congress and Republican majority that wants the Voting Rights Act to remain struck down... but wasn't dumb enough, politically, to offer up a bill to do so.  

Now surely the Republican House will not offer up a new bill now to update the pre-clearance formula that would require the DOJ's approval for any changes in state's voting laws.  (If you think they will, the Supreme Court needs to ban that medical marijuana you're smoking).  And the GOP majority's inevitable inaction in the coming weeks/months -- I would love it if they proved me wrong -- will prove just how absurd was Justice Roberts' utterly political premise for usurping the will of Congress in 2006 that was the law of the land.  

Furthermore, the majority cited states' rights (federalism) as its main justification for striking down the will of Congress.  However, Section 4 of the Voting Rights Act allows individual counties in affected states to "bail out" of the law if they can prove there is no recent history of racial discrimination against voters, as dozens of counties have since 1967.    

All that constitutional stuff aside, I agree with Dr. Martin Luther King that the arc of history bends toward justice... and obviously I agree with the U.S. Census that the arc of demography bends towards a non-white U.S. majority.  Politically, in the long run, this conservative SCOTUS decision -- and the inevitable inaction from a GOP-majority House that will follow it -- will be good for Democrats.  

I predict that this SCOTUS decision and Congress's almost certain failure to respond, combined with Republicans' likely continued inaction on immigration reform, will spur minority turnout rates in 2014 that will exceed 2012.  Republicans are showing once again they just can't get out of their rut... as they shoot themselves in the foot that's stuck in that rut.  

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