I think you have to hand it to Roberts-and President George W. Bush-as he's proven to be a very shrewd choice for conservatives. This is not a strength that you see too many conservatives endowed with these days. Most conservatives were ready to hang Chief Justice Roberts in infamy after he let Obamacare become indisputably the law of the land by discovering that it's a tax not a penalty.
How many conservatives were ready to burn him in effigy then-and how many liberals developed something of a warm spot for him? How do liberals like me feel about him now?
Part of the key is that he Roberts unlike so many conservatives today, understands the virtue of restraint. He understands it's a long game and the need to pick his battles. Unlike most conservatives , he's not cursed with utter myopia. You could see gritting his teeth and legitimizing Obamacare as the price he paid for verdicts like yesterday where he snagged a major personal white whale of his-a major wound to the Voting Rights Act.
You have to look at the wording of his decision yesterday to appreciate how subtlety and nuance are major weapons for his own cultural war. The best way to appreciate this is to compare it with two of his conservative brethren on the SJC-Antonin Scalia and Clarence Thomas.
Neither of these firebreathing Righties have any use for nuance and restraint which they see as perhaps in themselves somehow 'liberal' or at least 'eggheaded.' They have no use for trying to lower the amplification of their views but see it as their right to yell it in your face at every opportunity-Scalia particularly.
"Chief Justice John Roberts figured out how to solve a problem like Antonin Scalia.
Just as in the Obamacare case, he is also shrewd in his rationale for the decision. He declared the ACA constitutional but for a different reason than was sought-it's a tax and the government can do that. Now in striking down Section 5, he didn't actually strike down Section 5, but rather Section 4-which effectively strikes down Section 5-by forcing Congress back to the drawing board where it's likely to stay for awhile-one certainly can't hold one's breath waiting for Congress to rewrite Section 4 from scratch any time soon.
A major difference between Scalia and Roberts is that the former has long since become provocative for its own sake. Ostensibly he is provocative because he sees a teachable moment-presumably he is provocative to make a point; in truth, being provocative has long since morphed into the main point. The point is 'ain't I cute with such an irascible conservative I am'-he's kind of like an annoying old grandfather that we're forced to listen to.
On the other hand Roberts genuinely meant to persuade with his argument. By seeming reasonable and also bending a lot sometimes-ACA-he gives himself and the Court enough legitimacy that he can really do some serious harm as he did yesterday.
Fellow SJC Ruth Bader Ginsberg put it best the argument against Section 4 is like saying we're not wet thanks to this umbrella so clearly we don't need it anymore. It's success is used against it.
http://prospect.org/article/supreme-courts-war-great-society
How many conservatives were ready to burn him in effigy then-and how many liberals developed something of a warm spot for him? How do liberals like me feel about him now?
Part of the key is that he Roberts unlike so many conservatives today, understands the virtue of restraint. He understands it's a long game and the need to pick his battles. Unlike most conservatives , he's not cursed with utter myopia. You could see gritting his teeth and legitimizing Obamacare as the price he paid for verdicts like yesterday where he snagged a major personal white whale of his-a major wound to the Voting Rights Act.
You have to look at the wording of his decision yesterday to appreciate how subtlety and nuance are major weapons for his own cultural war. The best way to appreciate this is to compare it with two of his conservative brethren on the SJC-Antonin Scalia and Clarence Thomas.
Neither of these firebreathing Righties have any use for nuance and restraint which they see as perhaps in themselves somehow 'liberal' or at least 'eggheaded.' They have no use for trying to lower the amplification of their views but see it as their right to yell it in your face at every opportunity-Scalia particularly.
"Chief Justice John Roberts figured out how to solve a problem like Antonin Scalia.
In February, when the high court heard Shelby County, Alabama’s challenge to a core section of the Voting Rights Act, Justice Scalia blurted out that the 1965 landmark civil rights law, which ensured that Americans would be able to vote regardless of race, was the “perpetuation of a racial entitlement.” The gasps in the courtroom sounded like a busted airlock."
"Roberts, for decades a critic of the Voting Rights Act and a skeptic of government efforts to resolve the lingering effect of racism in American life, had to find a way to neutralize a key part of the law without provoking that sort of reaction. Ever mindful of the legacy of the high court, the chief justice could not allow a decision on the Voting Rights Act to seem rooted in the sort of racial resentment so nakedly expressed by Scalia. On the contrary, Roberts’ opinion repeatedly praises the Voting Rights Act as “immensely successful” before burying it."
http://tv.msnbc.com/2013/06/25/chief-justice-roberts-canny-voting-rights-act-takedown/Just as in the Obamacare case, he is also shrewd in his rationale for the decision. He declared the ACA constitutional but for a different reason than was sought-it's a tax and the government can do that. Now in striking down Section 5, he didn't actually strike down Section 5, but rather Section 4-which effectively strikes down Section 5-by forcing Congress back to the drawing board where it's likely to stay for awhile-one certainly can't hold one's breath waiting for Congress to rewrite Section 4 from scratch any time soon.
A major difference between Scalia and Roberts is that the former has long since become provocative for its own sake. Ostensibly he is provocative because he sees a teachable moment-presumably he is provocative to make a point; in truth, being provocative has long since morphed into the main point. The point is 'ain't I cute with such an irascible conservative I am'-he's kind of like an annoying old grandfather that we're forced to listen to.
On the other hand Roberts genuinely meant to persuade with his argument. By seeming reasonable and also bending a lot sometimes-ACA-he gives himself and the Court enough legitimacy that he can really do some serious harm as he did yesterday.
Fellow SJC Ruth Bader Ginsberg put it best the argument against Section 4 is like saying we're not wet thanks to this umbrella so clearly we don't need it anymore. It's success is used against it.
"In contrast to Justice Thomas's openly radical concurrence—he argues that Section 5 is unconstitutional—the Chief Justice's opinion is cloaked in apparent modesty. "Congress," the majority generously concedes, "may draft another formula based on current conditions." But, as Justice Scalia has previously writtenabout Roberts's superficially "minimalist" opinions, "this faux judicial restraint is judicial obfuscation." Forcing Congress to start from scratch makes it enormously difficult for Congress to pass a modified Section 4; the basic institutional realities of the American institutional framework make inertia the most powerful force. Once a legislative coalition has been torn apart, it cannot be easily reassembled. The Supreme Court isn't acting as a mere neutral arbiter here; it's putting an anvil on the scale tilting toward Republican opponents of voting rights."
http://prospect.org/article/supreme-courts-war-great-society
As it turns out, Roberts' 'minimialist' approach may well achieve maximum success at reaching reactionary verdicts. If Scalia weren't so pleased with himself he might realize that Roberts' game going forward is going to be much more effective than his own shock the liberals spiel.
In fact, Roberts has spent over 30 years as a determined foot soldier against the VRA seeking any angle or excuse to undercut it and finally he has really connected.
So where do we go from here? The prospects of Congress rewriting Section 4 any time soon-ie, during this term-doesn't seem very hopeful. It's true that in 2006, a Republican Congress and Senate-a long with George W. Bush-voted to reauthorize it for 25 more years. With that level of bipartisan support you might wonder if they can't get this done as Eric Holder is calling on them to do.
This comes to the nub of the whole debate. Roberts complains that Congress is using the same framework in Section 4 as they did in 1965 to determine who's on the list. Of course, the history of important legislation is replete with using the same formula for many years-like Medicare for example. Why are the number of years a method is used so significant?
In fact, it really doesn't matter. What matters is if the method remains effective and if it is still needed. That it is needed is clear by the number of states that are still seeking to roll back voter rights. The list of the states on the list have been uncannily predictive of where the most attempts have come from to obstruct voting rights today. The issue is not 1965 but today which still requires preclearance:
"There’s a particular irony to the Court killing Section 5 just months after a presidential election in which voter suppression attempts played a starring role. Congress was prescient when it reauthorized the VRA in 2006 for another twenty-five years. Thirty-one discriminatory voting laws have been blocked by Section 5 since that time. Six of nine states fully covered by Section 5, all in the South, passed new voting restrictions since the 2010 election, when GOP state legislatures approved a wave of voter suppression laws unseen since before 1965. In 2008, Shelby County, Alabama, the plaintiff challenging the VRA, was found guilty of the very type of voter discrimination the VRA was meant to address, after trying to eliminate the only black city council district in the city of Calera. The law’s coverage formula, though dated, is still surprisingly accurate. Law professors Christopher Elmendorf and Douglas Spencer surveyed data on racial stereotypes from the 2008 election and found that “Section 5…is remarkably well tailored to the geography of anti-black prejudice.” If anything, Section 5 should be expanded to encompass the wide scope of twenty-first-century voting discrimination, not narrowed or eliminated."
http://www.thenation.com/blog/174973/what-supreme-court-doesnt-understand-about-voting-rights-act#
It seems, however, that if we are to get Section 4 back it will have to wait until we get a Democratic House and filibuster proof majoirty in the Senate. There's a reason why laws like this usually keep an older framework-providied it's still relevant as Section 4 is: expecting Congress to continually reinvent the wheel is not realistic in a system where inertia is the default postion. Of course, in trying to achieve a Dem House we run smack into gerrymandered districts.
This may well be the momenclature of the Republcian party in the near future. They have long since decided not to learn anything from the 2012 defeat. Rather their bid for power is composed of three stools: a gerymandeered House, a filibustered Senate and a judiically activist conservative SJC majority.
The Senate is more generally, a remorselessly undemocratic institution where each state gets two Senators regardless of how many people actually live in the state. This vouchsafes well with John Roberts' Court as well, where the only case of equal rights that is valued is equality between states-regardless of population.
There is a good philosophical and legal debate about where to take the VRA from here. Some do argue that there may be something better to replace preclearance with. To be sure, this is far from a uninversal view-after all, preclearance puts the burden of proof on the state that wantsto change election laws rather than the voters effected.
It's important to bear in mind that while section 4 has been struck for now, section 3 remains in force where a state can be forced to preclear election chagnes based on a recent pattern of voter repression.
"How do you get on the Section 5 list? That’s covered by Sections 3 and 4. It’s Section 4, which relies on historical tests — like “did this jurisdiction require a literacy test to vote in 1964?” — that was struck down today. Most of the former Confederacy, for instance, was included because of Section 4. Now that Section 4 has been struck down, those states are free and clear."
"But Section 3 wasn’t struck down. Section 3 requires preclearance in cases where judges find, or jurisdictions admit to, constitutional violations in the voting process. For example, Arkansas was bailed in when a U.S. district court found that Arkansas’s voting laws intentionally and unconstitutionally discriminated against African-Americans. The court invoked Section 3, requiring Arkansas to preclear changes to voting laws going forward. Travis Crum wrote an excellent law note in the Yale Law Journal in 2010 explaining how Section 3 works, if you’re interested."
Beyond that, some argue for 'weaponizing Section 2.'
"Pildes’s preferred reform would scrap preclearance in favor of a more expansive litigation approach. “I would ideally like to see federal legislation that would require that regulations of access to the ballot box to be demonstrated to be genuinely necessary to realize a legitimate state interest,” he says. “I want a statute that creates, and protects, a right to vote, and requires state legislation to meet an exacting standard of scrutiny, and empowers courts to sort out the truly legitimate laws that regulate the voting process from ones that are pretext for partisan, incumbent-protecting, racially discriminatory, or for other purposes.”
He thinks that the court system would be well-equipped to handle such a charge, noting that in states not covered by the Voting Rights Act’s preclearance sections — like Pennsylvania or Ohio — where voting regulations, such as voter ID laws, cropped up last election cycle, courts were able to block the most egregious offenders. “It’s not the case that, absent preclearance, the courts aren’t able to act quickly enough to stop them from being implemented if the courts conclude those laws are illegal,” he says. There are more than enough civil society organizations, he argues, from the Brennan Center for Justice to the ACLU to the League of Women Voters, standing ready to challenge problematic legislation."
Actually, this regrettable SJC decision enables us to question another legacy of VRA: the majority-minority districts required under VRA are at best a double edged sword.
"this may be a good time to question whether the approach of the Voting Rights Act on redistricting is right at all. Traditionally, the VRA has been interpreted as mandating equitable representation of minorities in legislative bodies, often through the creation of “majority minority” districts. “Supreme Court decisions have held that drawing majority-minority districts may be required to ensure compliance with the Voting Rights Act,” as the Department of Justice puts it."
"And there’s definitely something to be said for ensuring that minority groups are able to elect candidates of their race or ethnicity. “The critique of descriptive representation is that people have different views, but if there’s a person in the room who fits that description, then that person becomes a witness to power, and other people may change the way they talk and think,” Yoshino explains. “The famous case is when [former Sen.] Carol Mosley Braun went to the Senate floor after they reauthorized the United Daughters of the Confederacy flag’s patent and said, ‘This is incredibly discriminatory,’ and they reversed themselves, simply because they’re ashamed to vote the way they had with someone they directly affected in the room.”
"But there are real costs to that. Research by Columbia’s David Epstein and Sharyn O’Halloran has found that two Republican districts are created for every majority-minority district. Moving away from the VRA’s districting model, which promotes majority-minority districts, could end up being good for policy goals held by blacks and Latinos who the VRA exists to help."
Ironically this is part of what gives us so many gerrymandered GOP districts. A different possibility would be a proportional represenation system:
"Again, there’s a tradeoff here, and simply having minority representatives present is unquestionably valuable. But the Supreme Court decision is a good opportunity to consider how much weight we want to place on ensuring that the views of minority groups are represented versus ensuring that members of those groups have an actual seat at the table. It’s possible that other options, such as a proportional representation system where minorities are guaranteed a proportional number of seats in multi-member districts, could do a better job of advancing minority groups’ interests than the VRA has to date."
While this ruling is wrongheaded and unforunate, it might enable us to give these matters some thought.
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