A friend I hadn’t talked to in a while asked how I was doing. I went down the list of the reasons I’m basically doing fine, my health is OK, the people I know all seem to be healthy, I had the second dose of the vaccine last week, I have enough money to get by, Sekhnet is doing fine, my arthritic knees hurt, but I’m still walking every day, I’m grateful for all this.
Then there’s this feeling I can’t shake, that I am living in Europe in 1932. A student of history, my friend immediately agreed with the comparison.
Weak and badly shaken democracies worldwide are buffeted by constant well-funded lies that agitate millions of angry citizens to rage about their grievances, real and imagined. These weakened democracies try to solve pressing problems for their citizens while an implacable, unprincipled enemy undermines them at every turn, snarling that democracy itself is the problem and arming and organizing itself for violent insurrection, if needed. In the US, these enemies would be willing to sacrifice another 500,000 American lives to the pandemic and kill a bunch more cops, a small price to make the current government look feckless and despicable and ensure their party’s return to absolute political power very soon.
My friend said the Georgia voter suppression law, like the ones passed more quietly in a few other states of the former Confederacy, could not stand a constitutional challenge. I walked him through John Roberts’s blandly dishonest decision in Shelby County v. Holder , the infamous 2013 case that threw away the most crucial protections of the 1965 Voting Rights Act in spite of Congress reauthorizing it almost unanimously (98-0 in the Senate), President George W. Bush signing it immediately, with a statement about its centrality to democracy and justice, and the challenged law being upheld by the two federal courts below the Supreme Court.
Roberts also failed to consider (or mention) the provision of the 1965 Voting Rights Act that allows a clean record of ten years with no voter suppression attempts to exempt a state from the preclearance requirement that Roberts threw out. In the Shelby County case itself, plaintiff Shelby County, Alabama (carefully chosen by a consortium of powerful right wing lawyers) had no such clean record. In fact, it had a blemished record. Never mind, John Roberts solved a problem that didn’t exist by taking a gut hook to a law that had been working pretty well to prevent the worst of the voter suppression it was designed to prevent.
The immediate result of throwing away the umbrella that was keeping us dry during a pelting shit-storm (to paraphrase RBG’s famous “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.“) was the instant mushrooming of restrictive voting laws in many states that would have previously needed pre-clearance before passing laws that discriminated against certain voters.
These newly liberated states had the laws all ready to go, signed them into law as soon as John Roberts fixed the Voting Rights Act for them.
In the first three months of 2021, 361 more such laws have been introduced in 47 states, emergency laws needed to deal with an “emergency” that only exists in right-wing media and the fevered hive-mind of Trumpism. These laws, it must always be pointed out, are based on a lie about widespread voter fraud. Their passage preemptively allows Republican state legislatures to intervene to certify the final vote tally, by throwing out thousands of legal votes, if necessary, as Trump illegally sought to have them do in 2020. In Georgia, no more worries about a law-abiding Secretary of State having the last word, the votes in every county will be counted by the GOP as well as all recounts.
This time, Roberts, on a 6-3 Federalist Society court, wouldn’t even have to get involved in upholding the Georgia law as reasonable and narrowly tailored to deal with a hypothetical problem, even one that has never been shown to exist in reality. No longer the “swing vote” on a 6-3 conservative court he can once again demonstrate that he is a principled institutionalist by voting with the three libtard losers that the Georgia law is arguably unconstitutional.
My friend said the court has to be increased to 11. I did the math for him. Georgia law upheld as constitutional 6-5, Roberts for the win, like in Hollywood Squares.
“Fuck,” he said.
The larger problem of institutional injustice is baked into the legalism of the law. A case often turns on an obscure bit of creatively-applied precedent, expressed in jargon the uninitiated have no hope of understanding. An obscure doctrine like the Non-deferential Exception Exemption Standard (a hypothetical doctrine pulled out of my ass) can be deployed by an unappealable Supreme Court to narrowly rule that, for example, a corporation has no obligation to do anything but make money for its shareholders and cannot lawfully be regulated in its pursuit of profit by any government agency or even sued by any consumer in a court of law.
“How can this be?” the average citizen asks. Well, that’s just your ignorance asking, you clearly don’t understand the fine points of the inviolable Non-deferential Exception Exemption Standard as set forth by our most brilliant jurists.
There was a great analysis of this right-wing judicial activism in the New York Times last week. The predominance of Federalist Society ideologues on the federal bench, appointed for life, is the result of a well-organized, well-funded forty year campaign to pack the court with friends of corporate and religious liberty. I clipped out the op-ed at the time, and Heather Cox Richardson mentioned it in her Letter from an American last night:
“By legislating from the bench, Republicans dodge accountability for unpopular policies,” writes Ian Millhiser in a terrific piece in the New York Times on March 30. “Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.”
Ian Millhiser ends his piece:
Yet to understand decisions like Little Sisters and West Virginia, a reader needs to master arcane concepts like the “nondelegation doctrine” or “Chevron deference” that baffle even many lawyers. The result is that the Republican Party’s traditional constituency — business conservatives — walk away with big wins, while voters have less access to health care and breathe dirtier air.
By legislating from the bench, Republicans dodge accountability for unpopular policies. Meanwhile, the real power is held by Republican judges who serve for life — and therefore do not need to worry about whether their decisions enjoy public support.
It’s a terrible recipe for democracy. Voters shouldn’t need to hire a lawyer to understand what their government is doing.
Earlier in the op-ed he lays out a few of the prize decisions the Federalist Society Supreme Court has delivered for its ideologically-driven deep-pocketed patrons in recent years:
In the same period, the Supreme Court dismantled much of America’s campaign finance law; severely weakened the Voting Rights Act; permitted states to opt out of the Affordable Care Act’s Medicaid expansion; expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties; weakened laws shielding workers from sexual and racial harassment; expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system; undercut public sector unions’ ability to raise funds; and halted Mr. Obama’s Clean Power Plan.
Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.
I told my friend there would need to be at least 15 justices on the Supreme Court to remove the power of a single “swing vote” like religious fundamentalist Amy Coney Barrett (her first decision was that traditional religious worship is more essential to freedom than state medical precautions during a pandemic), and a bipartisan committee to agree on and transparently vet candidates (no more hiding thousands of pages of prejudicial Brett Kavanaugh legal opinions or spending millions in dark money on a public relations campaign during confirmation, as was spent by Team Boof), and term limits on the justices to ensure that every administration had a pick or two.
“They’d never go for fifteen,” my friend said glumly, probably regretting he’d asked me how I was doing.
The essential dishonesty of the Roberts decision was its insistence that the debate over the Voting Rights Act relied on forty year old data, data that was largely erased by enforcement of the law he was now gutting. Since it had solved the problem he argued, as demonstrated by contemporary voter demographic data, and, as no pattern of racist voter suppression was currently in evidence, there was no further need to burden formerly racist states with an extra step, pre-clearance, before allowing them to institute restrictive voting laws that could, in any case, always be challenged in court.
His decision omitted many crucial facts that refuted his key assertions in the 5-4 decision (these are from Ruth Bader Ginsburg’s crystal clear, prescient dissent):
The reauthorization of the Voting Rights Act was passed, after 21 hearings and 15,000 pages of evidence of ongoing discrimination in the states under preclearance, by a vote of 390-33 in the House and, after further debate, 98 to 0 in the Senate. Reading the John Roberts decision you’d have no reason to suspect that President George W. Bush approvingly signed the reauthorization into law a week later, as RBG describes: