Justice Roberts' opinion gutting Voting Rights Act based on principle behind Dred Scott Decision

[Gothmog]

Justice Roberts' opinion on Section 4 of the Voting Rights Act was a really horrible opinion. http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf It is hard to read and is based on a concept of equal sovereignty among the states. I found the concept of equal sovereignty among the states to be a new concept that Roberts was using solely to gut the Voting Rights Act (Roberts has hated the Voting Rights Act since he was lawyer in the Reagan justice department). It seems that the "equal sovereignty concept is an old doctrine that was used to justify the Dred Scott opinion http://www.msnbc.com/msnbc/demeaning-insult-chief-justice-john-roberts-voting-rights-act-decision

One of the enduring mysteries of Chief Justice John Roberts’s opinion striking down part of the Voting Rights Act is which part of the Constitution the landmark civil rights law actually violated.

Roberts argued that the Voting Rights Act violated the “tradition” of “equal sovereignty” of the states. That concept is far more dubious than it might seem at first glance, according to a legal paper published by two longtime voting rights experts.

“The ‘equal sovereignty’ principle is not in the Constitution,” said James Blacksher, an Alabama attorney with a long career in Voting Rights. “It is, as the Chief Justice says, a ‘historical tradition.” Go straight past the penumbras, hang a right at the emanations.

Blacksher’s paper, co-authored with Harvard law professor Lani Guinier, argues that Roberts’s opinion in the Voting Rights Act case is a descendant of what is widely regarded as the worst Supreme Court decision in American history: The 1857 Dred Scott case, in which the high court held that blacks, slave or free, could never be citizens of the United States. That case is the “origin story” of the “equal sovereignty” principle, the authors argue, because the opinion by Chief Justice Roger Taney held that it would violate the sovereignty of the slave states to recognize blacks as American citizens. By invoking that principle, the authors write in Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote, Roberts was reviving “the oldest and most demeaning official insult to African-Americans in American constitutional history.”

“?‘Equal sovereignty’ was the basis of the longstanding argument, going all the way back to the founding of the United States, between the slave states and the free states. The slave states claimed that they were equally sovereign with the other states to decide whether to have slavery or not to have slavery,” Blacksher said. “The ‘equal sovereignty’ doctrine that Chief Justice Roberts relied on last year is rooted in the jurisprudence of slavery.”...

Prior to last year’s ruling, Akhil Reed Amar, a Yale law professor, wrote a Harvard Law Review article arguing that the Voting Rights Act was clearly constitutional. Amar wrote that an “extravagant anti-congressional theory of state equality” drove the Dred Scott decision, and that the court should “take care to avoid the decision’s biggest mistakes.”

The Dred Scott opinion was bad law back when decided and I am not surprised that Roberts is now using this same concept to gut the Voting Rights Act.

The Shelby County is one of the most partisan opinions in the history of the SCOTUS and is on a par with Bush v. Gore and Citizens United. We need to point out to the conservatives that Roberts is nothing but a racist who has to rely on the legal principle behind the Dred Scott decision to justify the gutting of the Voting Rights Act

[Scuba]

1. So another words, it's an excuse for doing what he wanted.

[Gothmog]

2. Yep

It is important that we get these facts out. Roberts is a hack who has hated the Voting Rights Act since he was in the Reagan DOJ. It is time to call out his partisanship.

[Enthusiast]

6. Precisely.

They want to suppress the minority vote. It is very simple.

These justices?

They are not men of integrity.

[Gothmog]

3. Here is a good explanation of Roberts' long term hatred of the voting rights act

Robert has been working on gutting the Voting Rights Act since 1981. http://www.motherjones.com/politics/2013/02/john-roberts-long-war-against-voting-rights-act

When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an "assessment" of the law. "I am sensitive to the controversy which has attached itself to some of the Act's provisions, in particular those provisions which impose burdens unequally upon different parts of the nation," Reagan wrote. "But I am sensitive also to the fact that the spirit of the Act marks this nation's commitment to full equality for all Americans, regardless of race, color, or national origin." Reagan didn't go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.

Roberts was a major player in the Reagan administration's VRA policy, drafting numerous op-eds and memos for top Justice Department officials that argued for a weaker version of the law. At the time, crucial parts of the VRA were due to expire, but congressional Democrats and moderate Republicans weren't just trying to renew the law—they were also trying to strengthen the law. After the VRA was enacted, it was interpreted as barring all discriminatory voting practices. In 1980, however, the Supreme Court, in a case involving the election rules in Mobile, Alabama, weakened the law by ruling that, except in those jurisdictions with a sordid history of blocking minority voters, the VRA only forbade intentional discrimination. Civil rights activists wanted to fix that by modifying the law to make it crystal clear that all discrimination in voting practices, not just intentional discrimination, was illegal.

Roberts wasn't having it. Voting rights violations, according to one memo he helped draft in 1981, "should not be too easy to prove since they provide a basis for the most intrusive interference imaginable." If Roberts and the Reagan administration had gotten their way, discriminatory voting systems in most of the country could only be barred when discrimination could be shown to be intentional. That would make it much tougher for the feds to intervene in states and localities and guarantee equal voting rights. The Reagan administration argued that they were just trying to preserve the Voting Rights Act, but it was really attempting to preserve a Supreme Court ruling neutering the law.

Roberts helped the administration hone its argument. He wrote that it made sense for parts of the VRA to require proof that discrimination was intentional. "Broad aspects of criminal law and tort law typically require proof of intent," Roberts wrote in a draft op-ed in 1981. Allowing the VRA to apply in cases of unintentional discrimination all over the country and not just those places with a history of disenfranchising minorities, Roberts insisted, "would raise grave constitutional questions." In the case of Mobile, the Justice Department's voting rights attorneys eventually did prove the discrimination was intentional—by heading to Alabama and poring over the historical record to establish the election law had been passed deliberately to disenfranchise blacks.

To Roberts, that demonstrated there was no problem with requiring the government to prove that discrimination was intentional. "John Roberts and others used that case to say anyone who wants to prove intent could do it," explains Gerry Hebert, an attorney now with the Campaign Legal Center who was part of the Justice Department team that went to Alabama. But proving intent "took enormous resources that only the Justice Department could have." More important, says Hebert, having to prove "intent" placed voting rights attorneys in a difficult position: "You basically have to get judges to call local or state officials racist."

Despite the best efforts of Roberts and others in the Reagan Justice Department, civil rights activists outmaneuvered Southern conservatives and the Reagan White House, forging large bipartisan alliances in the House and Senate to reauthorize the Voting Rights Act in 1982. And they strengthened the law, amending it to explicitly ban all discriminatory voting rules across the country, whether the discrimination is intentional or not.

Roberts has been determined to gut the Voting Rights Act for a long time and had to dredge up the legal rationale behind the Dred Scott decision to accomplish his goal.

[Mnemosyne]

4. Sickening pos opinion, and I'm sure his super secret court will back him up on it. nt

[Mnemosyne]

5. All they do is look for loopholes to destroy whatever suits them. Again, sickening...nt

[Jean4CountyClerk]

7. In my opinion...

Election Reform should be considered the most important forum on DU.

[Gothmog]

8. I agree

There are some good voter id and voting rights discussions on Discussionist

[AsaGordon]

9. SCOTUS Electoral Darwinism.

“The Redeemers who overthrew Reconstruction and established `Home Rule’ in the Southern States conducted their campaign in the name of white supremacy.”, The Strange Career of Jim Crow,C. Vann Woodward, 1974.


On February 26, 2010, the LEGAL BISNOW Washington newsletter reported on the American Constitution Society (ACS) meeting of preeminent election law practitioners under the headline, "THE GUILTIEST OF PLEASURES", declaring, "One guilty pleasure we can’t resist: sweating the implications of SCOTUS’s controversial 5-4 ruling in Citizens United v. FEC." The newsletter hi-lights and saves for the last word a "provocative point" of "legal Darwinism" raised by "THE CONTRARIAN." 
http://www.bisnow.com/dc-legal/the-guiltiest-of-pleasures/

"For the final word, we circle back to Asa Gordon, exec. dir. of the Douglass Institute for Government, who we thought raised a provocative point in ACS panel Q&A. What led today’s conservative-leaning Supreme Court to make such an activist decision in Citizens United? If you understand the Court’s philosophical embrace of legal Darwinism, which Asa describes as valuing the voice of the corporate individual as the most highly-evolved expression of citizenly virtue, then it’s easier to grasp why the Court overturned 100 years of legal precedent to protect the corporate individual/entity’s voice from being eclipsed by that of the uneducated masses.”


Actually, the expression I used as The Contrarian was "inferior masses." QUESTIONS FOR A NEO-CONFEDERATE JUSTICE? An Exposé of Legal Darwinism and Neo-Redemptionist Federalism _http://greenpapers.net/32/

The SCOTUS conservative majority is a throwback to the 19th century Legal Darwinists who believed that the judiciary should limit itself to the role of arbiters (referees) to insure that the nation’s superior beings, especially its newly exalted “corporate persons,” should not be unduly constrained by the collective will of the inferior masses. The government must therefore be constrained from providing unnatural support to inferior social classes that undermine the evolutionary progress of American society.

The Legal Darwinists seek to codify the “Social Darwinism” of the Victorian biologist Herbert Spencer, who declared, “I am simply carrying out the views of Mr. Darwin in their application to the human race.” Alito's appointment to the Supreme Court established a neo-Legal Darwinist and Redemptionist Federalist conservative majority that would “meet the needs of a changing society” by addressing the nation's changing racial demographics and effecting the Social Darwinism of the conservative intellectual icon William F. Buckley. Buckley‘s National Review editorial, "Why the South Must Prevail,"_(Aug. 24, 1957) provides the Darwinian context for SCOTUS' neo-redemptionist ruling in Shelby County v. Holder. Buckley wrote:

"The central question that emerges . . . is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not prevail numerically? The sobering answer is Yes-the White community is so entitled because, for the time being, it is the advanced race. It is not easy, and it is unpleasant, to adduce statistics evidencing the cultural superiority of White over Negro: but it is a fact that obtrudes, one that cannot be hidden by ever-so-busy egalitarians and anthropologists. National Review believes that the South's premises are correct. . . . It is more important for the community, anywhere in the world, to affirm and live by civilized standards, than to bow to the demands of the numerical majority."

In Shelby County v. Holder, SCOTUS inaugurated a eugenics based voting rights jurisprudence. SCOTUS neo-eugenic jurisprudence allows states to adopt voter ID sterilization laws to mitigate the polluting of American democracy by the participation of non-white populations in the electoral process. Surreptitiously adopting Justice Oliver Wendell Holmes reasoning in Buck v. Bell, upholding the 1924 eugenics law by declaring "Society can prevent those who are manifestly unfit from continuing their kind ... Three generations of imbeciles are enough.", the conservative majority has decided that nearly two generations of imbecilic voting by blacks is enough.
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The SCOTUS conservative majority's Legal Darwinist rulings in Shelby County v. Holder, Citizens United v. FEC , and McCutcheon v. FEC provide the supreme judicial trifecta for Electoral Darwinism.