By any measure, Shelby County v. Holder (2013) was a remarkable decision. Ripping the heart out of one of the most important pieces of legislation ever passed by the United States Congress – the Voting Rights Act of 1965 – Shelby was a shocking abuse of the Supreme Court’s power of judicial review, transforming the “least dangerous branch” into an aggressive and completely illegitimate super-legislature. And of all the arenas in which the Court could choose to flex its muscles, the field of racial equality at the ballot box is probably the most inflammatory it could ever have chosen, reopening America’s deepest historical and moral wounds and pouring acid on the exposed flesh of the polity. From an institutional perspective, Chief Justice Roberts and his putatively conservative brethren have executed a spectacular and carefully calculated coup. (We say “putatively conservative” because there is nothing remotely conservative, in the true meaning of the term, about the majority decision: Shelby County v. Holder is radical in every sense, flagrantly violating express constitutional provisions, ignoring the concept of judicial restraint, and thumbing its nose at history.) Not only did these murderers of the Voting Rights Act have motive and opportunity; they left the remains of their victim in plain sight for all the world to see. The manifold ramifications of their radicalism and hubris will echo down the ages.
And yet, after the enormity of the Court’s decision has been fully appreciated, a deeper question emerges: does (judicial) repeal of the Voting Rights Act ultimately matter? For the effect of Shelby is to change the electoral prospects of the two factions that control America’s political institutions. The assumption being made by Democrats outraged by Shelby is that their faction is less evil than the other one, or not evil at all. As we have argued before (see, for example, here, here, and here), that assumption is questionable at best. Lesser evilism most commonly emerges from its hiding place in the American ideological underbrush during our quadrennial presidential circuses. Its most convincing tool – for some, even a trump card – is the argument that a Democratic president will populate the Supreme Court with the right kind of judges. Shelby will, over time, undercut the force of that argument by weakening the electoral prospects of those who would do the nominating and confirming of the robe-wearers. But for some of us, that argument lost its persuasiveness a long time ago, even without citing cases in which the “right” kind of judges voted the wrong way.1 Our disgust with Shelby should not blind us to the larger and more fundamentally dangerous reality that both parties are evil. Is an erosion of the ability to support the purported lesser evil really a loss worth mourning?
This is Not Your Father’s Racism
Immediately after the Court handed down its decision in Shelby, six states that had been subject to the federal preclearance procedures established by the now-dead Section 4 of the Act announced their intentions to implement various measures, such as voter ID schemes, that have the intent and effect of discriminating against minority voters. Mississippi’s Secretary of State attempted to reassure voters by stating that, “We’re not the same old Mississippi that our fathers’ fathers were.” Indeed not. In ye olden days, the party doing the discriminating was the Democratic Party, which ruled the South in the interests of the elite and forced many a Northeastern liberal to hold his nose as well as his tongue. Back then, as students of America’s long love affair with Jim Crow know only too well, the Democratic primary was effectively the general election; when the federal courts invalidated various state discrimination schemes, the intramural rules of the Democratic Party picked up the slack. (The Supreme Court finally stopped that practice in Smith v. Allwright (1944), sending the states back to the drawing board one more time.) Prior to passage of the Voting Rights Act, securing the black vote truly was a game of whack-a-mole, and it is to this well-trodden and miserable path that the Roberts Court has returned us, knowing full well that Congress in its current state will be neither willing nor able to fashion an appropriate riposte to its brazen power grab.
With no political opposition in the Solid South, discrimination against black voters was not intended to keep another party out of power, as it is today. Yet, underneath the party labels, the covert and disingenuous racism of today serves a similar purpose to the overt and vicious racism of “our fathers’ fathers.” Jim Crow effectively co-opted poor whites who otherwise had no interests in common with the elite into a profoundly conservative faction that preserved the power and privilege of the white masters. Poor whites would have seen their conditions improve in material terms had they seen through this charade and resisted the appeal of traditional, base emotions. And, despite Chief Justice Roberts’s highly subjective opinion that “things have changed” over the last fifty years, the fact remains that poor whites and America’s racial minorities could still, just as in the past, be a potent political force if they perceived their interests – and their potential saviors – accurately. The white elite understands this today just as well as it did in 1965. Thus, in the contemporary, “post-racial” South (and many other areas), a two-pronged strategy is pursued. Blacks will be disenfranchised and silenced directly, though with the grudging acceptance that total suppression will not be possible. Meanwhile, the co-option of poor whites no longer relies primarily on the appeal to racial animus, but now includes repeated pressing of several other social hot buttons (gun rights, immigration, abortion, gays, school prayer, bogus patriotism, etc. ad nauseam). For Chief Justice Roberts and his accomplices, this change in the role of racism constitutes a sufficient basis to invalidate federal preclearance of habitual discriminators. While discussion of that opinion might have made for many an interesting article in academic journals, it had no business assuming the force of law in the U.S. Reports.
Spitting on the Graves of Titans
The Roberts Court has not just dishonored Dr. Martin Luther King and all the brave men and women who risked their lives to realize the broken promise of the Civil War Amendments. They have not just spat on the grave of Lyndon Baines Johnson, who had Texas dirt in his veins but found the enormous political courage (and possessed the masterful political skill) to drive a wooden stake through the heart of the Southern monster, thereby setting in motion the South’s two-decade long transformation to a new, Republican solidity. No, these five Republican Justices have also defied the men – their own ancestors in the party of Lincoln – who crafted the Civil War Amendments in a period of nation-rebuilding that amounted to a second framing. As Rob Hager’s superb constitutional analysis highlights, the framers of the Civil War Amendments (or CWA) wanted to ensure that the judiciary would not be able to ruin Reconstruction having just set the country on course for war by handing down its most reviled decision of all time, Dred Scott v. Sandford (1857). Thus, the CWA contained express grants of authority to Congress to enact whatever measures it deemed necessary to implement the 13th, 14th, and 15th Amendments. The Voting Rights Act of 1965 was based on the clearest possible authority in Section 2 of the 15th Amendment:
The Congress shall have the power to enforce this article by appropriate legislation.
How many times have alleged conservatives told us that we must “follow the Constitution”? How much clearer could the Constitution be? The question of whether preclearance was appropriate was litigated a long time ago, in South Carolina v. Katzenbach (1966), and that Supreme Court found the mechanism entirely justified by the 15th Amendment’s broad grant of power.2 However, as the composition of the Court changed in response to many years of Republican control of the nominating process, the Court started to show signs that it would reign in Congress’s power in this arena, requiring Congress to show that its “disparate geographic coverage is sufficiently related to the problem that it targets.” (See Northwest Austin Municipal Utility District No. One v. Holder (2009).)
Evolving Constitutionalism for Conservatives
When Congress reauthorized Section 4 of the VRA in 2006, overwhelming majorities of both houses of Congress felt there was still a need to prevent a recrudescence of electoral discrimination in certain jurisdictions. As Justice Ginsburg’s dissent in Shelby and the immediate responses of several states amplify, there is still a problem to be targeted. In holding otherwise, the Roberts Five relied not just on their superior ability to perceive the nature of reality – an essential attribute for any super-legislature – but also trotted out that shopworn conservative tool, federalism. Apparently, the states’ interests in regulating their own elections (albeit explicitly mentioned in Article IV of the Constitution) trump the broad grant of power granted to Congress by the Civil War Amendments.
For Rob Hager, this use of the federalism argument was extremely disingenuous and opportunistic. Hager was involved in Montana’s attempt to protect the integrity of its own elections from the influx of dark money made possible by Citizens United v. FEC (2010). In that case, American Tradition Partnership v. Bullock (2012), the Court invalidated Montana’s state campaign-contribution laws on the grounds that they infringed upon the First Amendment rights of corporations to “speak freely” by buying bigger bullhorns than anyone else. Yet in Shelby, all of a sudden, the state’s right to manage its own elections manages to trump an express provision (as opposed to a Court interpretation manufactured from whole cloth3) of the 15th Amendment. Funny old world, isn’t it?
But Roberts is open to another charge besides blatant partisanship, plutocratic coddling, historical insensitivity, and sheer ignorance of the world around him. He has also contradicted his own words in the decision the whole country was watching this time last year – the Obamacare decision, NFIB v. Sebelius (2012):
Roberts relied heavily on these words from Holmes: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” And in language of his own that could easily have been penned by Frankfurter, Roberts concluded that “[t]he Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
This was how we portrayed Roberts’s adherence to the principle of judicial restraint. As usual with so-called conservatives, principles are utterly expendable. The invocation of such principles serves only to corral gullible minds in the collective illusion that American governance is based on something more than naked greed and power. It isn’t.
The Long Road to Freedom… from Democracy
As the Bible Belt sallies forth into the new era of Jim Crow v. 2.0, ensuring, as always, that all of God’s children will be treated as we would treat our own, the obvious victory of the plutocracy in Shelby (and Citizens United and American Tradition Partnership) occurs against the backdrop of a long-term victory that is much harder to perceive, even by those who are winning it. For the ultimate victory of the plutocracy, systematically concealed by the corporate media, is the absence of meaningful choice at the ballot box. The most effective way to disenfranchise racial minorities, and any other group of untouchables, is to ensure that the politicians for whom they vote – if they can vote – will not actually represent their interests. This task has been accomplished beautifully.
Having overturned the greatest achievement of the Great Society, America’s uber-aggressive right wing will focus with renewed intensity on its ultimate target, the New Deal. But wait: somebody’s already started on that. One of the most important parts of the New Deal, the Glass-Steagall Act, which protected the U.S. economy from any repeat of the Great Crash of 1929, died at the hands of one William Jefferson Clinton, another colorful child of the South and America’s unofficial “first black president.” When Wall Street treated the nation to the inevitable crash that repeal enabled, a black Democrat, whose campaign was funded in large part by the banks (before Citizens United), was ready and willing to shepherd the banks to safety, no matter the cost to the rest of society. That same black Democrat has presided over a staggering intensification of state secrecy and surveillance, prosecuting whistleblowers with unmatched ferocity and putting the United States on a permanent war footing. Barack Obama’s formal training in constitutional law has been no more of a barrier to this descent into totalitarianism than his partisan affiliation. In every area of public policy that matters to the interests that matter the black Democrat has betrayed the confidence of the minority voters who waited patiently in line to exercise their hard-won franchise. They should not have bothered.
Those who voted for the black Democrat have legitimized the unrelenting march of the corporate state. They have on their hands the blood of innocent victims of imperial aggression around the globe. They used their vote the wrong way. Martin Luther King, had he not been murdered after denouncing the Vietnam War and correctly identifying the innate inequity of capitalism, would have understood all of this. He would have been horrified by the murder of the Voting Rights Act. But he would have been aghast at the hollowness of the right that legislation sought to protect. When the entire system is evil, why would any moral person want to endorse it at the ballot box? Voting, as a means of democratic expression, has been confined to the harmless arena of American Idol. In the potentially harmful arena of governance, plutocracy has already won by a landslide.
- The recent ruling in Monsanto v. Bowman – a unanimous decision in favor of corporate poisoning of the biosphere – would be a perfect example. ↩
- The reader will note that the states wasted no time in challenging the Voting Rights Act. Almost fifty years later, the bastards finally won. ↩
- A favorite disparaging phrase of Chief Justice Rehnquist. ↩