Thursday, July 18, 2013

John Roberts Meets Big Julie

John Roberts Meets Big Julie

In the wonderful, funny musical  “Guys and Dolls” our slightly hapless hero, Nathan Detroit, finally is able to set up a crap game deep in the New York sewers.  Things are going rather well for him (he gets a cut of every pot) until a disgruntled Big Julie “who has lost a lot of dough” announces he’s going to personally shoot with Nathan.  Nathan demurs, saying he only arranges, he doesn’t play, but Big Julie, with the help of a beefy friend, convinces Nathan otherwise.

Big Julie’s rules are, shall we say, somewhat special to the institution.  He will be playing with his own dice.  Nathan, understandably concerned, asks to inspects them.  Very peculiar dice they are.  No spots.  So, how does one play craps when the dice seem blank? Simple.  Big Julie says that he remembers where the spots are.  Needless to say, his fortunes suddenly take an upturn

I don’t know whether Supreme Court Justices go to the theatre, but in two seminal decisions, Citizens United (written by Justice Kennedy) and Shelby County vs. Holder  (Chief Justice Roberts) the Court has become a spectacular impresario for the Big Julies of the political world.  Citizens United unleashed a torrent of dough that pervades every nook and cranny of virtually every election, allowing the well-heeled to make politics akin to shopping at Costco; walk in with your membership card, and lawmakers may be purchased in bulk.  And Shelby has erased all the spots on the voter discrimination dice.  Anything goes now in suppressing the votes of people who might possibly lean in the wrong direction.

Shelby is a truly fascinating case.  Like Citizens United, it is a classic example of when the Supreme Court might be correct on the law, in the abstract, but chose to completely ignore the practical implications of their decision.  The Shelby case was challenge by Shelby County, Alabama, to the Voting Rights Act of 1965, and specifically to Section 5.  That provision identified nine states (Deep South and Alaska) and assorted jurisdictions in seven others (including places in California, Michigan, North Dakota and five sites in New York City) to get “pre-clearance” from the Justice Department before changing their voting laws.   The idea was to prevent behavior proscribed by Section 2: discrimination in voting laws on the basis of race. 

The original Voting Rights Act was passed in 1965, and was reauthorized five times, the last in 2006 by a “squeaker” of 390-33 in the House, and 98-0 in the Senate.  There were literally thousands of pages of testimony showing continued voting discrimination in the legislative history leading up to the 2006 reauthorization.

But, it was clear that the Act had enemies on the Court.  Justice Scalia, even before the decision was rendered, called it a “perpetuation of racial entitlement.” And it had one clear vulnerability; the static nature of the designation of those States and localities that required “pre-clearance.”  Congress had never changed the formula since 1965. 

That Achilles Heel led to its downfall.  In a brilliant piece of advocacy, Roberts stitched together one fact (that minority voter registration and minority office-holding in the South was at historically high levels) and one crushing question to Solicitor General Verrilli, Is it the government’s submission that the citizens in the South are more racist than citizens in the North?”

Game over.  No pre-clearance, because the designations had not been revisited.  The Chief Justice is sensitive to the Court’s place in history, and his own legacy, so he took great pains to remind everyone that discrimination under Section 2 was still forbidden.  He also suggested that Congress come up with a new definition of a “covered jurisdiction.”  Having found that high ground, he then simply eviscerated the enforcement mechanism.  States and local jurisdictions are now free to do what they want without any impediments, subject to later getting sued, after the election is over, of course, and the votes have all been counted.

I said I thought Roberts was right on the law.  I think he was, if you look through the narrow lens of a static definition of what a “covered jurisdiction” was.  But, in ignoring the legislative history, and the evidence of a continuing pattern of discriminatory acts, he chose not to recognize the practical implications of his decision.

Because the fact of increased minority registration and office holding in the South and the comparative level of racism in the South are substantively irrelevant.  Personal prejudice is both permissible and meaningless. Hate as much as you want in the privacy of your own home, so long as you don’t express it institutionally.   Voter registration and the number of minorities holding office is an interesting piece of data, but it is also irrelevant.  

Why? Because politicians have figured out how to play the game at a far more sophisticated level. Stuff minority voters into gerrymandered districts, and, presto, you have minority office-holders, while “cleansing” adjoining districts of them.  Farfetched?  Not really.  Name a state that Barack Obama carried by 6 points and a majority of the Congressional votes went to Democratic candidates?  That would be Pennsylvania, where the  Democrats hold exactly four of the eighteen Congressional seats.  Not exactly the will of the people.

And, registration levels aren’t nearly as important as voting rates. A registered voter who doesn’t vote because her polling place closes early, or doesn’t have enough voting booths, or enough staff, or changes locations three days before the election, is just another person who didn’t vote.  That is before a raft of voter ID laws, purging of voter rolls, and other less savory aspects of the voter suppression game are played.

Do I think Justice Roberts is a partisan Republican with a single minded, devious plot to undermine Democratic voting and insure GOP primacy for decades to come?  No, of course not.  I think he is a committed jurist who understands that the public expects him, above all other son the Court, to be fair.

But sometimes, when courts put their hands on the legislative scales, they can’t help but tilt them.  That is exactly what happened in this case. The results in Shelby, just as in Citizen’s United, were immediately pernicious.  The gong went off and the race to the bottom has begun.  Texas, North Carolina, Mississippi, Georgia and Florida have already enacted or are discussing new restrictions devised to suppress minority voting, and more GOP-controlled states have similar legislation in the hopper.

What do we say to the people who are going to be disenfranchised and the candidates who will lose close elections as a result?  To quote from Guys and Dolls, Big Julie honors you with the taking of your stakes.”