coup in the area of voting rights and remedies
to racial discrimination.
Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . And I will remember that it's my job to call balls and strikes, and not to pitch or bat. -John Roberts Opening Statement at his Supreme Court confirmation hearing
In today's decision by the extreme radical Roberts 5 (PDF) striking down the Voting Rights Act, reauthorized in 2006 by an overwhelming vote in Congress (unanimously in the Senate and by a vote of 390-33 in the House) and signed by a Republican president, the chief justice, writing for the Radical 5, says:
[the Voting Rights Act is not] “consist[ent] with the letter and spirit of the constitution.” The dissent states that “[i]t cannot tenably be maintained” that this is an issue with regard to the Voting Rights Act[. . . .] The dissent treats the Act as if it were just like any other piece of legislation[. . . .]
This is shockingly disingenuous from the seemingly genial man from Indiana who today has taken another step in his pernicious project to declare any attempts by any government to address racial discrimination in this nation unconstitutional. For this is in fact NOT what Justice Ginsberg wrote. But the chief justice and the Radical 5 cannot honestly address the dissent because it has no answer for the obvious flaw in their decision—it is completely unmoorred from the Constitution. It is a shocking act of judicial activism, perhaps the most shocking of the Roberts Era. Roberts is no umpire—he is a man with an agenda—a racialist agenda to stamp out any efforts to address discrimination in our country.
On the law, there is not much to say. Justice Ginsburg addresses the constitutional point in the first few pages of her dissent, joined by Justices Breyer, Sotomayor and Kagan, as we'll see below the fold.
But first: It’s a little known fact that the U.S. Constitution does not guarantee the right to vote for everyone, but we are fighting to change this. Please sign the petition to join Daily Kos, Color of Change, and a growing movement to pass a constitutional amendment guaranteeing and protecting the freedom to vote for all.
The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation. [...]That's the law. No honest observer can defend the legal reasoning employed by the Radical Roberts 5. Now to the pernicious project. The Roberts 5 purports to turn the question of the Voting Rights Act back to Congress, hoping that ignorant reporters will say that it is "up to Congress." But it was "up to Congress" in 2006. And the Congress acted. And the "judicially modest" chief justice and the Radical 5 decided that they would determine the "rational means" to be employed by the Congress to carry forward the mandate of the Fifteenth Amendment.
The question before the Court is whether Congress had the authority underthe Constitution to act as it did. In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886). When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.
The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:
“Let the end be legitimate, let it be within the scope ofthe constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).
It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin, is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan, 384
U. S. 641, 653 (1966).
Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review:
“As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” 383
U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.” [...]
[T]he Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.
But the "umpires" that make up the extreme radical Roberts 5 oppose the objectives of the Fifteenth Amendment. They oppose the guarantee to minorities of the right to vote. Their goal is to frustrate the objectives of the Fifteenth Amendment. And they employ any means necessary to do so—including the naked assertion of broad judicial power in express contravention of the Constitution itself.
In the area of voting rights and racial discrimination, nothing less than a judicial coup has been executed by the Radical Roberts 5.
Outrage is too tame a word for what has occurred.