The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.

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Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 


Is Democracy in America Coming Apart?

December 6, 2016

I wrote Unfit for Democracy to warn that American democracy could collapse in coming decades. But the problems are coming home to roost sooner than I expected.

How the economy treats people matters. That was the starting point for my work and, since World War II, for political scientists studying the survival or breakdown of democracy. But the American economy has been leaving lots of people behind. In my book I argued that the Supreme Court was diluting the value of ordinary Americans’ economic rights in favor of the wealthiest people and corporations. I feared the danger to democracy as people became more and more desperate.

I also worried the Court wasn’t enforcing the Bill of Rights for ordinary people and feared would-be dictators could take advantage of it. And I worried because the Court permitted politicians to fix the voting mechanisms to make fair elections almost impossible.  Changes made after the 2010 census allowed Republican-dominated legislatures to lock Democrats out of Congress and the majority of state legislatures for the foreseeable future. That Court-sanctioned gerrymandering now blocks fair representation in Congress and in many states. Trump kept claiming that the system was fixed, implying that it was fixed against him, but the Court allowed the Republican Party to block access to the polls in many states.[1] The election was partly fixed, in favor of the Republicans and Mr. Trump.

I also worried that legal changes underlying changes in the media and the primary systems were contributing to the polarization of America. As Jim Hightower once titled a book,  There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos. I thought that was dangerous.[2]

Now we are finding out that only a quarter of Americans still believe that it is important to live in a democracy. And we’ve elected a president who befriends autocrats – autocrats who destroyed democratic governments, censored the press, put opponents in prison, and took over.

Once that happens, the people who wanted to break the system down have no voice in what the new system does. Autocrats around the globe become kleptocrats – they steal from everyone for themselves and their friends. In commentary earlier this year I described that as the Sheriff of Nottingham syndrome – the sheriff from the Robin Hood legend who took from the poor to fill the pockets of King John. Corruption in democracies doesn’t hold a candle to what autocrats do to their people financially, how opportunities suddenly depend on the dictators’ favor, how freedom disappears, real freedom, the freedom to walk around out of prison and take care of one’s family. Those folks who were so ready to break the system are likely to be among the first broken by it.

The Court won’t protect us. Those with power have no motive to protect us, but only to keep their own advantages. The rich will have more, not less control. Just look around at how Trump is deepening the threats:

  • His worldwide set of conflicts of interest become opportunities for Trump enterprises in the pattern of third-world kleptocracies;
  • He proposes to cut benefits for ordinary Americans, leaving more for himself and friends;
  • He selects America’s wealthiest to run our economy;
  • He rants about asserting “Second Amendment rights” at the polls as if menacing people at polling places advances democracy;
  • He rants about throwing people in jail – starting with his political opponent – though that threatens democratic competition;
  • He seems to think that winning means he can do whatever he wants.
  • And he and the Republicans seem to believe recounts are legitimate only for themselves – not to protect and enforce the voters’ choices.

If American democracy collapses, it will be the biggest victory for the world’s worst people. As Trump pounds on the pillars of democracy, we will have to do all we can to preserve the American democratic way of life.

[1] Unfit for Democracy, at 195-204.

[2] Id.  at 153-67; Law and the Polarization of American Politics, 25 GEORGIA STATE L. REV. 339 (2008).

— This commentary was broadcast on WAMC Northeast Report, December 5, 2016.

 


Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

— This commentary was broadcast on WAMC Northeast Report, April 12, 2016.

 

The Court’s attack on the “ever-normal granary”

June 30, 2015

I’ve been celebrating like many of you over the marriage equality and Obamacare decisions last Thursday and Friday. But my own celebrations are tempered by the realization that these two cases don’t symbolize any shift on the Court. Kennedy’s libertarian philosophy has paid dividends in the gay rights controversy for years. But the decision last November to hear the case challenging whether federal health exchanges could provide subsidies to those without the money to buy a health plan unassisted, turned into a trap.[1] The scale of damage that would have been done by blocking the subsidies made it impossible even for opponents of the program to shut it down. Nothing in the decision suggests that Kennedy had a change of heart about having wanted to declare it unconstitutional, and nothing suggests that Roberts had a change of heart about narrowing the commerce power, even though he had approved the individual mandate in the statute as a tax. Twenty years ago, Thomas wrote he would consider going back to the Court’s very restrictive definition of federal powers before 1937 when President Franklin Roosevelt’s appointments changed the Court’s philosophy. Apparently Scalia and Alito are on Board with him.

That brings me to raisins.

Horne v. Department of Agriculture,[2] looks like the Supreme Court is maneuvering to get us back to the era when it throttled government economic policy. Horne held unconstitutional a program to keep the supply of raisins on an even keel.

Roosevelt’s New Deal Administration had the dream of an “ever normal granary” for farmers. Their prices were spiking in both directions, making farming very difficult especially for family farmers whose resources to endure periods of low prices were limited. The statute was passed in 1937 to create the “ever-normal granary,” in order to deal with the effects of the great depression, stabilize prices, preserve supplies against shortages from drought or other natural causes and to protect farmers against “disastrous lows” from bumper crops.[3]

The result was a program to store portions of crops in government facilities when supply exceeded demand and release them in periods when yields were too low. It was a program designed by farmers for farmers.

The Horne decision used the takings clause to overrule part of that nearly eighty year old statute which had been designed to help pull the country out of the great depression of the ‘30s.

If one simply reads the words of this Roberts Court decision, it looks easy to get around. Government could use a regulation or a tax. And there are other ways to make this decision seem appropriate and unthreatening.

But I don’t believe it. This case has been part of a decade long set of challenges looking for a way to take down federal agricultural marketing policies. The attorney for the Hornes was a well-known conservative activist, professor and former judge. I doubt he handled this case just because he sympathized with the Hornes.

Similarly, when the Rehnquist Court decided United States v. Lopez in 1995 on federalism grounds all the constitutional scholars said it was insignificant, a shot across the bow but portending nothing. Within a few years it was clear they were wrong. The Court started declaring civil rights statutes unconstitutional as violations of principles of federalism that are nowhere in the language of the Constitution.

This case is not a one off. The Court has been developing takings doctrine so that it can be used to block federal regulation of the economy and the environment. The conservative faction on the Roberts Court is trying to develop legal tools to return the U.S. to a period in which we are a congerie of 50 small states instead of a single proud country. And if that happens, family farmers especially may be sorry to be free of federal regulation.

— This commentary was broadcast on WAMC Northeast Report, June 30, 2015.

[1] Linda Greenhouse, The Supreme Court’s Reality Check, NY Times blogs, June 25, 2015, http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html?rref=collection%2Fcolumn%2Flinda-greenhouse

[2] Horne v. Dep’t of Agric., 2015 U.S. LEXIS 4064 (2015).

[3] Mordecai Ezekiel, Farm Aid-Fourth Stage, The Nation, February 26, 1938, Vol. 146, No. 9, p. 236-238, available at http://newdeal.feri.org/nation/na38146p236.htm.


The American Melting Pot

February 17, 2015

I’d like to share with you some thoughts that came out of a short piece I was asked to write about the Roberts Court. I’d like to dedicate this commentary to Yusor Abu-Salha, who spoke on NPR’s Story Corps about how wonderful the U.S. is, where people of all backgrounds share one culture, shortly before she, her husband and sister-in-law were killed in Chapel Hill because they were Muslims, and to all the others, Christian, Jewish, Muslim, and all who have been murdered or tortured because they had what bigots defined as the wrong parents or beliefs.

You might think that the melting pot is the result of a lot of individual private decisions. But you’d be mostly wrong. Actually the melting pot is the result of a series of very public decisions. We made the decision, centuries ago, to provide a public education to everyone. That put us in the forefront of the world as an educated, progressive, productive and egalitarian society. We made the decision almost two centuries ago to provide public coeducational schooling. That put us in the forefront of the world in creating decent and progressive gender relations. We made the decision long ago to provide an education to immigrant children alongside the children who had been born here. That made us one people, regardless of where we came from. And all the private decisions in the great American melting pot took place in a world defined by our public schools.

Finally in the mid-twentieth century, the U.S. Supreme Court decided that we would treat race the same way that we had treated gender, language, religion and ethnic differences – that is, we would bring everybody into the same public schools. That opened the melting pot to still more of us so that our racial divisions are less sharp than they were a century ago – nowhere close to erased, but less sharp.

Chief Justice Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[1] But he wrote that in connection with a decision to prevent a pair of school districts from bringing people together across racial lines. No melting goes on with Roberts at the stove.

When decisions are made that advantage the majority, Justice Scalia makes it plain he thinks that’s just normal; he sees no need to ask whether anyone was discriminating or intending to treat minorities differently.[2] But there’s no vice versa for Scalia – any decision favoring racial minorities is automatically suspect for him. Indeed, he and Thomas have described “legal protection from the injuries caused by discrimination” as “special protection” and “favored status.”[3]

In 1782, French immigrant Hector St. John de Crèvecœur, famously wrote that immigrants “melted” easily into Americans, and freed themselves from the slavery of the Old World.[4] The same year, the Founders of our country adopted our motto, e pluribus unum, Latin for out of many one. Our Founders did all they could to welcome immigrants, making e pluribus unum a reality for us. That has been our country’s glory. That welcome has peopled our continental expanse, brought to our country the most talented and driven from all parts of the world, and allowed us all to share in the benefits of each other’s talents and accomplishments. That welcome has allowed us to build a country without the hostilities that have torn and still so blatantly tear other countries apart. There is nothing more truly American than e pluribus unum. And nothing more central to the development of our great country than the melting pot, even if some of those who now lead our highest institutions can no longer see it or enjoy its savory aroma. It was left for the British writer Israel Zangwill in 1909 to put the immigrants into “the great Melting-Pot where all the races of Europe are melting and reforming!” adding, “Into the Crucible with you all! God is making the American.”[5]

The Founders worked specifically to welcome Muslim immigrants to America. They would have been proud of the Abu-Salhas and ashamed of Craig Hicks, and would join us in cherishing the diversity of people who share decent lives in America and praying for that mutual respect everywhere.

— This commentary was broadcast on WAMC Northeast Report, February 17, 2015.

[1] Parents Involved v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)

[2] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 515-18 (2006) (Scalia, J., dissenting in part).

[3] Romer v. Evans, 517 U.S. 620, 645, 652-53 (1996) (Scalia, J., dissenting).

[4] Hector St. John de Crevecoeur, Letters from an American Farmer (1782).

[5] Israel Zangwill, The Melting Pot: Drama in Four Acts (1909).


Schwerner, Chaney, Goodman and the Voting Rights Act

November 25, 2014

Yesterday, President Obama posthumously awarded the Presidential Medal of Freedom to James Chaney, Andrew Goodman and Michael Schwerner, a Black Mississippian and two white New Yorkers, murdered fifty years ago, working to register Blacks to vote in Mississippi. They were among many who lost their lives in that struggle.

Schwerner’s widow, Rita Schwerner Bender, said the best way to honor her husband “and all the others killed or injured in the struggle for voting rights and the dismantling of Jim Crow would be the reinstatement of the Voting Rights Act and its aggressive enforcement.”[1]

At the last hearings on renewal of the Voting Rights Act, witnesses made clear that efforts to rig the process against African-Americans continue unabated, moving polling places, changing district lines, reorganizing forms of government so that Blacks could still be excluded. Because the Voting Rights Act gave the United States Attorney General power to reject changes, those efforts had not succeeded.

In Shelby County v. Holder,[2] Justice Roberts used the Act’s success against it, saying it is no longer needed because the statistics are better. Pamela Karlan, a highly-respected Stanford Law professor, told Congress:

“ if you have a really bad infection and … the doctor … give[s] you a bunch of pills, and … tell[s] you, ‘Do not stop taking these pills the minute you feel better. Go through the entire course of treatment because, otherwise, the disease will come back in a more resistant form.’ … [T]he Voting Rights Act is strong medicine, but it needs to finish its course of treatment, and that has not yet happened … [as] you have heard from other witnesses. ”[3]

Those other witnesses made clear that the efforts to undo electoral integration continues almost unabated and would come roaring back if allowed. The Court stripped the pre-clearance provisions from the Voting Rights Act and the disease came roaring back just as Prof. Karlan predicted.

Should we care about African-American voters? Absolutely. Morally, they’re people like us. Democracy has no right over peoples denied the vote.

And for our own self-interest. Martin Niemöller said of the Nazis:

First they came for the Socialists, and I did not speak out—

Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

 

As Bruce Bueno de Mesquita and his colleagues explain, the power of dictators is built on shrinking the number of people to whom he or she owes her power, and then rewarding those folk big-time.

You have no stake in southern white racist politics. If you’re Democrats, you have no stake in Republicans winning by excluding African-Americans. In Congress and state legislatures, people of good will are allies. We cannot win on the nonracial issues important to us if we allow our African-American fellow citizens to be excluded from the vote.

Those who wrote and ratified the Fourteenth and Fifteenth Amendments understood that having won the Civil War they could lose the peace if African-Americans could be prevented from voting in the former Confederate states.  We all have a stake in a society where all are represented because that is our chance for a just society in which government is not just of, by and for people who think they’re better than the rest of us.

— This commentary was broadcast on WAMC Northeast Report, November 25, 2014.

 

[1] Jerry Mitchell, Presidential medal to honor 3 slain civil rights workers, JOURNEY TO JUSTICE, The Clarion-Ledger, November 18, 2014, available at http://www.clarionledger.com/story/journeytojustice/2014/11/10/presidential-medal-of-freeom-given-three-slain-civil-rights-workers/18826791/, or http://on.thec-l.com/1ugJ0pp, visited Nov. 24, 2014.

[2] 133 S. Ct. 2612 (2013)

[3] Statement Of Pamela S. Karlan, in The Continuing Need For Section 5 Pre-Clearance, Hearing Before The Committee On The  Judiciary, United States Senate, One Hundred Ninth Congress, Second Session, May 16, 2006, Serial No. J–109–77, S. Hrg. 109–569, at 5.


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