If You Were an Economically Privileged White Fat Cat —You Would Understand and Agree with the Illogic of Justice Roberts’ Intentionally Ignorant Majority Opinion — regarding Section 4(b) of the Voting Rights Act of 1965 — a Brief Look at Shelby County, Alabama v. Holder

26 June 2013

“Ya just gotta” look around a bit to see that racial and plutocratic bigotry is still firmly in place in America’s Supreme Court

One of the tricks of constitutional jurisprudence is to mask illogic, preferential fact selection, and blatant bias beneath a concealing layer of apparently thoroughly reasoned logic.

That duplicitous trait has been evident in virtually every one of the current Supreme Court’s more controversial recent “conservative” opinions.

Apologists excuse these deviations from rationally defensible interpretations of Reality by saying that reasonable people can disagree on “difficult” issues.

These folks mean — being both half-witted and analytically lazy — that available “evidence” favored neither judicial side in the issue at hand — and that (therefore) all the justices had to let their abstract political philosophies guide their clashing opinions.

Admittedly, it is true that reasonable people can disagree about the implications of evidence, as well in regard the policy dimensions of the “best” legal outcome(s).

But that is NOT what has been happening here.

Instead, we have (in the majority of instances) the “activist” conservative justices deliberately rolling back:

(a) evidentiarily supported precedents from the past

and

(b) denying facts in the present —

so as to impose their own intentionally ignorant — and usually bigoted and plutocrat-favoring — world view on the rest of America.

In imposing its biases, the “conservative” majority joins the reactionary mainstream that has historically marked the Court.

The difference is that, with the passage of time, comes an increasing accumulation of precedent. And, with this accumulation, these alleged conservatives have to indulge in still more dishonesty and disingenuousness to get their hatchet job done.

Seeing this deceptive trait in the Court’s decisions, requires familiarity with Supreme Court case law — as well as willingness to read, reason, and dissect the justices’ opinions

That is too much work and too time-consuming for most of us.

So, we are usually left leaning toward one side or the other of the Court’s division based on our own (usually) biased predilections.

Sadly, our complacence gives these justices a free pass, even when their shenanigans deliberately skate from should have been the outcome that soundly reasoned jurisprudence would have dictated.

When Supreme Court justices make up law and facts and dismiss accepted principles of jurisprudential reasoning, they need to be called on it.

Let’s do exactly that with the conservative majority’s frankly rationally ridiculous decision regarding Section 4 of the Voting Rights Act, as that opinion was delivered by Chief Justice Roberts in Shelby County, Alabama v. Holder (25 June 2013).

Shelby County v. Holder — a good illustration of conservative justices intentional ignorance and bigotry beneath a layer of pretended reason

Rather than bore non-attorneys with the legalistic crap that superficially looks so good in Shelby County, let me summarize the trick that Roberts et al. played on both the American public and Reason.

As background to the following explanation, the Voting Rights Act of 1965 contained provisions that made it possible for federal authorities to review and reject voting laws and regulations generated in some mostly southern states. This federal review process was called “preclearance”.

These jurisdictions’ voting laws and regulations had been especially bigoted and — in Congress’ opinion —unless prevented from doing so, would consistently continue to hook and crook their ways to keeping African-Americans (especially) in an inferior voting position.

The jurisdictions that had to undergo federal preclearance was determined by the “coverage formula” set out in Section 4(b) of the Act:

The provisions of subsection (a) shall apply in any State or in any political subdivision of a state which [:]

(1) the Attorney General determines maintained on November 1, 1964, any test or device,

and with respect to which

(2) the Director of the Census determines that less than 50 percentum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 percentum of such persons voted in the presidential election of November 1964.

Specifically:

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.

Until yesterday, the Supreme Court had gone along with the preclearance requirement

The Supreme Court had upheld this usually unconstitutional federal intrusion against federalism (States’ Rights), on the basis of:

(a) the Fifteenth Amendment (to the U.S. Constitution), which says that:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

The Congress shall have power to enforce this article by appropriate legislation.

and

(b) supported by the evidence that Congress had amassed in 1965 to show that certain political jurisdictions were blatantly violating the Amendment’s requirements.

Time passes

With the passage of time, the suspect jurisdictions claimed to have reformed their evil ways, so much so as to fly among Heaven’s angels.

One of them, Shelby County (Alabama) went to court to fight the preclearance requirement.

Thereby making Chief Justice Roberts’ clever, but deceit-filled, legal conjuring trick possible

The Chief Justice, who often represents oily smarm at its best, argued that the Voting Rights Act was a horrific trespass on the principles of federalism, justified only by an even more horrific disregard for African-Americans’ voting rights that had been present in 1965.

If you accept both these premises without analyzing them, you can reverse continued justification for Section 4(b) by finding that all the horribleness of the South’s behavior has disappeared. Which is exactly what the Chief Justice did:

There is no valid reason to insulate the coverage formula from review merely because it was previously enacted 40 years ago. If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.

It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story.

And it would have been irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time. But that is exactly what Congress has done [in reauthorizing the Act].

That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act.

Congress could have updated the coverage formula at that time, but did not do so.

Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Shelby County, Alabama v. Holder, Attorney General, No. 12-86, decided 25 June 2013 [570 U.S. ___ (2013)] (at slip opinion, pages 23-34) (paragraphs split)

“So, Pete, what’s wrong with Chief Justice Roberts’ reasoning?”

It is stupidly proven, when examined by virtually any rationally objective thought process.

And Roberts’ analytical technique constitutes a deliberate evasion of the application of jurisprudential common sense in favor of a pretended ideological attachment to federalism and equal state sovereignty.

Let’s take the “stupid” first — with law professor Paul Campos’ irritated dismissal of the opinion’s non-logic

Professor Campos sums the decision’s lack of intellectual merit by saying:

The law was constitutional when it was passed . . .Yet it is no longer constitutional, because the law has worked so well!

This is where dissenting Justice Ruth Bader Ginsburg comes in

There is an obvious flaw in Professor Campos’ attack. It is conceptually possible that a law could work so well that everybody covered reformed his, her, or their children’s ways. In that event, the law would indeed no longer be needed.

But that is not what happened in regard to this voting rights case.

We get a clue here because Justice Robert carefully avoids dealing with recent evidence that voting discrimination continues to occur. (“Why bother me with facts, when I’m off on an ideological tangent?”)

Justice Ginsberg, apparently of the same mind as Professor Campos, bolsters her dissent with recent evidence of intentional voting discrimination — which any “moron” would recognize greatly weakens Roberts’ disingenuous argument.

Taken seriously, Ginsberg’s facts would have reduced Justice Roberts to weighing what he did not have the courage to

Namely, the ideological worth of (a) States Rights and sovereign equality as measured against (b) the predictable continued harm to African-Americans in the subject jurisdictions.

That is the intellectually offensive dark beauty of Roberts’ disingenuous trick.

The Chief Justice knew that no one was going to want to throw the baby out with the bath water by blatantly coming out and saying that state sovereignty should suddenly outweigh proofs of continued voting discrimination.

A more honest justice would have attempted to deal with the very real conundrum now presented by the facts that:

(a) the Voting Rights Act’s coverage formula very likely is out of date,

and

preclearance itself may now apply to comparatively less injurious jurisdictions —

BUT equally,

(b) injustices continue to occur in the currently preclearance-required places.

How would a fairer-minded Justice of Integrity deal with such gray area?

Arguably, the way Justice Ginsberg did.

By leaving things alone, on the implied reasoning that centuries of oppression are unlikely to have cleared up in 40 years, as even Justice Roberts counts them:

First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation.

Congress is entitled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization.

Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA [Voting Rights Act].

Third, a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22.

If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute.

In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime.

Shelby County, Alabama v. Holder, Attorney General, No. 12-86, decided 25 June 2013 [570 U.S. ___ (2013)] (at slip opinion, Dissent, pages 11-12) (paragraphs split)

Driving her point home, Justice Ginsberg concluded that:

The record supporting the 2006 reauthorization of the VRA [Voting Rights Act] is also extraordinary.

It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House.

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support.

It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”

In my judgment, the Court errs egregiously by overriding Congress’ decision.

Shelby County, Alabama v. Holder, Attorney General, No. 12-86, decided 25 June 2013 [570 U.S. ___ (2013)] (at slip opinion, Dissent, pages 36-37) (paragraphs split)

With Justice Roberts’ intellectual and moral perfidy exposed — what is really going on with the “conservative” bench?

It is simple. And the overwhelming majority of black people know it:

There are certain people in power, specifically white males of privilege in America, who've never believed in Dr. King's dream, who do not want to see diverse people come together in any form, not as voters, not as citizens, not as human beings, and certainly not as a threat to a power structure they've maintained since the "founding" of this nation.

They do not need to call themselves the Ku Klux Klan or the White Citizens Council in 2013.

They simply wear business suits or the black robes of justice, talk about democracy as if they practice it themselves, then they do everything they can to concentrate and consolidate power in the hands of a few.

That is the crux of the matter.

Amen.

The moral? — Recall how I started this essay

“One of the tricks of constitutional jurisprudence is to mask illogic, preferential fact selection, and blatant bias beneath a concealing layer of apparently thoroughly reasoned logic.”

All this is done with the intended goal of tricking the busy, gullible, or less educated into thinking that one represents something other than self-interest, privilege, bigotry, and raw greed.

PeteFree.com

If You Were an Economically Privileged White Fat Cat —You Would Understand and Agree with the Illogic of Justice Roberts’ Intentionally Ignorant Majority Opinion — regarding Section 4(b) of the Voting Rights Act of 1965 — a Brief Look at Shelby County, Alabama v. Holder