Supreme Court Justice Kagan Lights Up the Sky in Dissent

Four days after Independence Day, we find America is not now as independent as it was before The Supreme Court took another swipe at voting rights.

Justice Elena Kagan is having none of it. Just when we thought Chief Justice John Roberts might be acquiring a conscience—perhaps steering decisions a bit more toward center—he stripped down to his skivvies and leapt into the pool with the conservative majority.

What was at stake was only the rights of minorities to vote and when you’ve got a cushy lifetime appointment at the top of the social food-chain, who gives a shit about minorities? Certainly not the Chief Justice.

A brief history of how The Supremes failed America

I’ve always preferred The Supremes as a monicker for the nine robed potentates in Washington, because Motown was far closer to the American pulse than any court in the land. Plus, I would have loved to see Diana Ross in John Robert’s chair.

But I digress…

Eleven years ago in Citizens United v. Federal Election Commission, The Supremes held that corporations had the same rights to free speech as people. Some wag at the time held that he would believe a corporation was a person when the state of Texas executed one.

Such kidding aside, the court essentially found that ‘money’ was ‘speech’ and corporations were free to spend vast sums in Political Action Committees (PACs). You and I…not so much.

You see, that’s where I have an enormous problem with Citizens United. Free speech is no longer an equal right when I am allowed to speak from a soap-box and Tucker Carlson speaks regularly to an audience of almost three million viewers. His megaphone reaches millions and mine might catch a hundred on a good day. What’s possibly equal about that?

Then they had a go at the Civil Rights Act

In 2013 The Supremes effectively cut the heart out of the Voting Rights Act of 1965 by a 5-to-4 vote. Without so much as administering anesthesia,  they chose to free nine states, mostly in the South, to change their election laws without advance federal approval.

The Supremes had repeatedly upheld that very law in earlier decisions, finding that the pre-clearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks. That’s pretty clear language. The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx.

In a head-snapping comment that trashed those earlier decisions, Chief Justice Roberts wrote in 2013, “Things have changed dramatically” in the South, when he authored the majority opinion gutting the Voting Rights Act, ruling that states with a long history of discrimination no longer needed to have changes to their voting procedures approved by the federal government.

In case you hadn’t noticed, legislatures in 23 Republican majority state legislatures have already–or are preparing to–restrict voting rights by truly draconian measures. It seems to me that Roberts is hardly likely to be unaware of these measures, but he appears ready and willing to cast them in bronze.

Justice Kagan has a word about that

Actually, she has many words, a book-full and she’s visibly angry.

The court decides this Voting Rights Act case at a perilous moment for the nation’s commitment to equal citizenship,” she writes. “It decides this case in an era of voting-rights retrenchment – when too many states and localities are restricting access to voting in ways that will predictably deprive members of minority groups of equal access to the ballot box.”

What is tragic here is that the court has (yet again) rewritten – in order to weaken – a statute that stands as a monument to America’s greatness, and protects against its basest impulses,” she writes.

“Maybe some think that vote suppression is a relic of history – and so the need for a potent section 2 has come and gone,” she says, taking a swipe at Chief Roberts offhand and wrongheaded opinion. “Efforts to suppress the minority vote continue. No one would know this from reading the majority opinion.”

The court’s majority also misses a larger point, Kagan writes. One of the most effective forms of voter suppression is death by a thousand paper cuts, piling voting inconvenience on top of voting inconvenience. By turning a blind eye to these kinds of inconveniences, the supreme court is enabling this kind of voter suppression, she argues.

In countenancing such an election system, the majority departs from Congress’s vision, set down in text, of ensuring equal voting opportunity. It chooses equality-lite.”

Throughout American history, election officials have asserted anti-fraud interests in using voter suppression laws. Poll taxes, the classic mechanism to keep black people from voting, were often justified as “preserving the purity of the ballot box and] facilitating honest elections,’” she writes.

Writing for the court’s majority, Justice Alito says the ruling is based on “careful consideration” of the text of section 2 of the Voting Rights Act.

But Kagan doesn’t buy that at all. She notes that the text of section 2 categorically prohibits any voting law that denies equal access to the ballot box based on race.

The majority’s opinion mostly inhabits a law-free zone. It congratulates itself in advance for giving section 2’s text ‘careful consideration’. And then it leaves that language almost wholly behind. (Every once in a while, when its lawmaking threatens to leap off the page, it thinks to sprinkle in a few random statutory words). The majority instead founds its decision on a list of mostly made-up factors, at odds with section 2 itself.”

The gathering storm of informed opinion

The Guardian.com: US supreme court deals blow to voting rights by upholding Arizona restrictions

Washington Post Editorial Board: Opinion: The Roberts court systematically dismantles the Voting Rights Act

Paul Waldman: The Supreme Court’s new ruling confirms it’s the enemy of democracy

Slate.com: The Supreme Court’s Latest Voting Rights Opinion Is Even Worse Than It Seems

NYTimes.com: Supreme Court Upholds Arizona Voting Restrictions

As Chuckles the Clown might say, “A Little Song, a Little Dance, a Little Seltzer Down Your Pants.”


Image Credit: The New York Times

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