On Tuesday, the Supreme Court handed down
its decision in Shelby County v. Holder,
in which a 5-4 majority comprising the usual suspects effectively neutered Section 5 of the
Voting Rights Act.
Enacted in 1965, Section 5 requires certain
jurisdictions (including Texas, the Deep South, Alaska, Arizona, and three New
York boroughs) to obtain ‘preclearance’ from the Justice Department or federal
judges in D.C. before making any changes to election law; such proposed changes
have been vetoed 2400
times in the last four redistricting cycles. While the Court’s ruling
didn’t strike down Section 5, it nullified another section of the law,
rendering Section 5 void until Congress passes fresh legislation determining
which jurisdictions will be covered, legislation which most observers consider
unlikely to pass at all for some time.
The case originated from a 2008 municipal
election in the city of Caldera, Alabama, held using district lines not precleared
by the Justice Department, and which resulted in the city’s only black
councilman losing his seat. Backed by the conservative Project for Fair
Representation (the same group behind the recent challenge
to the University of Texas’ affirmative action policies), the county, which has
had 200 proposed voting changes rejected, sued to extricate itself from the
provisions of the Act.
In gutting the Act, the GOP-appointed
Justices and the conservative activists pushing the case may have done the
Democratic Party a huge favour.
The best-known consequence of Section 5,
and the one at issue in the case, is the creation of majority-minority
districts. In the early 1990s, the (First) Bush Administration consciously used
the preclearance power to its partisan advantage by disapproving congressional
district maps lacking the requisite proportion of black-majority seats. The
creation of such heavily Democratic (and often oddly-shaped)
districts meant that surrounding districts were purged of African-American
voters.
When elections were held using the new
maps, the Congressional Black Caucus (and its Hispanic counterpart) saw its
numbers swell, but the dramatic reduction of southern seats winnable by white
Democrats helped the GOP sweep to majority status in the region and the nation
in 1994. Today, Democrats hold 40 House seats in the eleven Confederate states,
down from 67 in 1991, and similar reductions were seen at state and local level.
With the Republicans benefiting from it, and the Democrats unable to risk the
seats of minority congresspeople and legislators by challenging it, racial
gerrymandering has become entrenched, and ensures that the redistricting
process in most of the South is structurally biased in favour of the GOP.
As long as Section 5 remains inoperative,
legislatures can still be forced to create majority-minority districts, but
through a more time-consuming legal process. Democratic legislators in states
covered by the Act can use their influence to draw districts favourable to
their party, without being forced to pack super-majorities of Democrats into
majority-minority districts. Without the preclearance weapon, a Republican Attorney-General
appointed in 2020 won’t be able to shape the new decade’s congressional maps in
the way his predecessors did.
Much of the media coverage surrounding the
ruling has focused on the potential for states to enact a new wave of voter ID
laws. This focus ignores the facts that the vast majority of preclearance
decisions under Section 5 concern redistricting rather than laws on voter
registration and identification, and that last year’s push by Republican
legislators to suppress voter turnout was concentrated in presidential swing
states mostly outside Section 5’s reach.
When President Johnson signed the Voting Rights
Act into law, he is said to have remarked that he was ‘signing away the South
for a generation’. By putting the redistricting process in the region back on a
level playing field, the Supreme Court may have put an end to the GOP’s
takeover of Dixie.
The U.S. Supreme Court handed down two
momentous decisions this week. Firstly, in Arizona v. United
States, it gutted much of Arizona’s
draconian immigration law (SB 1070) which gave state law enforcement the power
to stop anyone and ask them to prove their status as a citizen or legal
immigrant. The Supreme Court struck down the more heavy-handed provisions as
intruding on powers constitutionally granted to the Feds by a series 5-3 and
6-2 votes (Kagan recused, and the other three Democratic appointees were joined
by Roberts and Kennedy, and, on one provision, Alito). They did, however,
unanimously agree on the constitutionality of the stop-and-search provisions,
and the fact that the law clearly targets Mexicans and Mexican-Americans
doesn’t matter, as a series of precedents going back to the mid-1970s (damn
Nixon appointees!) have made it virtually impossible to get any law struck down
as violating the Fourteenth Amendment on the grounds that it is applied in a
racist manner.
The Arizona
law is part of an upsurge in anti-immigrant and anti-Latino/a rhetoric on the
American right. This upsurge began seemingly for no reason in 2006 (although it
did conveniently distract from the Republicans’ unpopularity at the time), and
quickly reached the point where prominent conservative bloggers were accusing
politicians from their own side of selling out American’s interests. (In one
memorable example, Michelle Malkin displayed on her website a 100-peso note
depicting President Bush with a moustache and wearing a sombrero.) In the last
two years, Arizona and Alabama
have enacted similar laws purporting to give state officials the power to
police immigration matters and judging by the number of states which filed amicus curiae briefs in support of Arizona (nine, plus the Northern
Mariana Islands), more could be planning similar crackdowns.
The decision in Arizona v. United States will likely only be a symbolic one for
immigrants and their allies. The same administration which took Arizona to the nation’s
highest court has deported one million undocumented immigrants (mostly
Latino/a) in just over three years. Earlier this month, it defended in court
armed federal officials who pointed
a gun to the head of an eleven year-old Latina
girl during a drug-related raid. And then there’s the Fast and Furious-gate
scandal, in which D.C. has been found to have been fuelling the drug-related
border violence which many Mexicans move north to get away from. The severity
of the anti-immigrant measures taken by the Obama-Brewer axis has ensured that
net migration from Mexico to
the United States
has fallen
below zero. It will take more than the striking down of parts of a state law to
bring back the glory days of the poor, tired, huddled masses.
The second case was the one regarding Obamacare.
I predicted that the provision requiring virtually every American adult to
purchase health insurance would be upheld as permissible under the Commerce
Clause by a margin of 6-3 (the four Democratic appointees being joined by
Kennedy and Roberts). The result was quite different: 5-4 (Kennedy dissented),
but the provision was justified under Congress’ power to tax despite it
violating the Commerce Clause. Most of the rest of the law stays in place.
I read in the weeks leading up to the
decision that some of the conservative justices might uphold Obamacare because
they could endanger certain Republican policy ideas by asserting and
strengthening the Commerce Clause. It seems that Chief Justice Roberts found a
way around this problem by endorsing the idea of the mandate as a tax, rather
than as a regulation of interstate commerce; because of his hedging, there is a
5-4 majority against Obamacare’s
compliance with the Commerce Clause. Watch out for a future liberal-leaning
SCOTUS striking down a Republican administration’s efforts to implement school
vouchers or health care vouchers or to privatise social security on this ground.
The debate around the case has been
excruciating. Liberals have put forward conceptions of the rightful powers of
the federal government which include compulsory military service, something
which their ideological forebears risked life and limb protesting against in
the 1960s and 1970s. They have also found themselves defending a law which
forces people to buy a product from the same large corporations they accuse of
profiteering. Conservatives have opportunistically opposed this expansion of Washington’s reach, but
seem to forget about the Commerce Clause when it comes to enforcing reactionary
social mores. (Case in point: Justice Scalia, who concurred in Gonzalez v. Raich that the Feds could stop
California
from legalising marijuana cultivation for private consumption, but seven years
later finds Obamacare unacceptable in its entirety.) In the end, the nation’s
highest court has handed down an ambiguous decision which somewhat protects its
(and its Chief Justice’s) impartial reputation and avoids accusations of
attempting to influence the upcoming presidential election, while providing for
many unintended consequences down the track.
The controversy surrounding Obamacare has
caused many to rehash the old debate about judicial interference in public
policy matters, a debate which has moved in and out of the forefront of
American life since Marbury v. Madison.
President Obama himself weighed into this a few months ago, tentatively
suggesting that the will of the legislative branch should be considered alongside
any constitutional concerns that the Justices might have about the law. For
this, he earned rebukes from the same conservatives who have built an entire literature
about ‘judicial activism’. The conservative critics of so-called ‘judicial
activism’ and the liberals who fret about the supposed partisanship of the five
Republican-appointed SCOTUS Justices (but never the partisanship of their four
Democratic-appointed colleagues) have in common a conception of the role of the
judiciary which is elitist, apolitical, and unrealistic. They demand that
judges be impossibly impartial and insulated from the political climate around
them.
The bête-noire
of those with such a conception of the judiciary is judicial elections – one
of those peculiarly American devices which a certain type of cosmopolitan, New York Times-reading American finds
embarrassing and provincial. Just look at this
article in the aforementioned newspaper, which talks gushingly of the exams
that French magistrates must pass before serving, which are contrasted with the
judicial elections used in some U.S.
states. Three members of Iowa’s
Supreme Court recently received the John F. Kennedy Profile in Courage Award
for legalising same-sex marriage and then being voted out of office. Electing
judges, according to its critics, invites partisanship, populism, and
demagoguery, but no-one advocates abolishing elections to the legislative and
executive branches for the same reason. The Supreme Court, by contrast, is
chosen by presidential nomination, American Bar Association vetting, and
senatorial confirmation, but still throws up partisan appointees (the current 5-4
split), justices subject to political pressure (the New Deal-era ‘switch in
time that saved Nine’), unqualified nominees (Harriet Miers, Robert Bork…), and
morally outrageous decisions (Dred Scott,
Plessy v. Ferguson, the WWII
internment of Japanese-Americans…).
Judicial elections emerged in the United States
during the Jacksonian era, when they were seen as necessary to preserve the
independence of the judiciary against the legislative and executive branches.
Nowadays, special interests such as the various state Bar Associations lobby
for their abolition in order to insulate judges from public opinion. The result
of successful campaigns to abolish judicial elections is that the politics is
simply moved behind closed doors, and partisan elected officials are supposed
to impartially select meritocratic judicial nominees. Needless to say,
appointing judges doesn’t remove the politics of judicial selection nor does it
result in better adherence to the laws and constitutions of the several states.
Opponents point to unsavoury electoral contests in which judges have campaigned
on their record of executing more criminals, but never explain how this is more
disturbing than demagogic, ‘Tough on Crime’ appeals made by candidates for
other branches of government (such as the Willie Horton ad, or Bill Clinton
suspending his 1992 campaign to sign the death warrant of a mentally retarded
African-American man).
If the Supreme Court were elected, all Americans
would be able to determine the direction of their highest court’s
jurisprudence, not just the special interests which have the power to sway the
vote of one of the hundred members of the Senate. If the Founders had
instituted federal-level judicial elections from the beginning, we would
probably have avoided Dred Scott,
corporate personhood, Plessy v. Ferguson, the various cases affirming
state-level eugenics programs, and the post-1970s rise of mass incarceration of
black and Latino men. We could triple the Court’s size (to twenty-seven) and
elect them for renewable six-year terms. Parties would put up slates of
candidates (the literature suggests that partisan judicial elections are
better) and a nationwide vote using an open-list form of proportional
representation could be used. This way, the interpreters of the constitution
would be chosen not by the President, Senate, and American Bar Association, but
by the people themselves.
