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.”
MM
