Her latest starts with a bang:
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote. How on earth did it come to pass that the Supreme Court ruled a major provision of the Voting Rights Act of 1965 unconstitutional?
Addressing Mr. Rein, Justice Elena Kagan asked: “You said the problem has been solved. But who gets to make that judgment really? Is it you, or is it the court, or is it Congress?” When the lawyer answered that while Congress can examine a problem, “it is up to the court to determine whether the problem indeed has been solved,” Justice Kagan responded: “Well, that’s a big new power that you are giving us – that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick.”
The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.
But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”
Justice Scalia, that’s called democracy.
Or it was.
It is all worth reading.
h/t George Cochran.
(Comment in wrong thread. )
who cleaned up cochrans vomit or cleaned up his face when he lost the allenberg cotton case after his revisit to scotus? just a bully armed with a cigarette.
Terminator, you’re the bully here, hiding behind anonymity to launch bile. You don’t really know George Cochran, and obviously don’t have enough going on inside (either brain or heart) to understand what he’s contributed, to the point that I’d wonder what you’ve done good for the world. I’m presuming well into the negative range.
If this is what you’ve got to contribute, your getting close to termination.
I’m guessing you didn’t have the mental equipment to grasp what he was saying in first year con law and haven’t ever gotten over it.
I don’t agree with George Cochran on a host of issues, but I like him. He is a bit abrasive, but people are what they are.
Perhaps Scalia does recognize that limiting the rights of certain states by Congress is consistent with a democracy. But the United States is not a democracy. It’s not even a representative democracy. It is a federal republic. And reducing some member states to inferior status is not consistent with our founding charter. Nor, in my opinion, is it consistent with the 14th and 15th Amendment. Legislation which only applies to certain states is not “appropriate.”
People have differing opinions. I certainly understand that. I happen to think Scalia is right and from what I know of George Cochran’s opinions, that he is wrong on this issue. But I’m not going to attack George personally just because I disagree with him, and I find the attacks on Scalia equally wrong.
George Cochran is a really bright man with whom I disagree on several issues. But I have much respect for him. I think he is great for the University. By the way, I was told once that he was recruited to OM by Frank Montague. Isn’t Frank a Republican?
NMC, I also think George had some bullying in him “back in the day” with his ever-presence cigarette.
I want to thank Terminator for reminding folks of my professional ability to secure only Rehnquist’s vote in Allenberg and the time I was a wholly-owned subsidiary of RJ Reynolds. With respect to his critique, he is not alone. Below find an articulate shot across the bow that I refer to students as a model if they are less than satisfied with time spent with me.
http://www.ratemyprofessors.com/ShowRatings.jsp?tid=1162125
Principles bifore personalities
The 14th and 15th Amendments protect individual liberties. States do not have individual liberties. The only way this “inferior status” argument could have any meaning at all is if your sense of individuality and personal autonomy is so stunted that you need the label “Mississippian” to feel even a sliver of self worth. It bears no resemblance to a respectable constitutional argument. It belongs in the same dusty drawer as the sentimentalism that caused people to place their hands over their hearts when they heard “Dixie” at a football game. It’s totally pathetic, and the day that moldy sentimentalism dies will be a happy one.
There is no use having a legal argument with somebody whose viewpoint springs from an adolescent need to belong. It’s two different languages.
Hootie, I know about the grillings George gave “back in the day”– I was there. I worked on a cert petition with him (as a kid working for my dad between undergrad and law school), and I had his con law class in 1978-79.
When I started doing appellate arguments, particularly with “hot” panels, his grillings immediately came to mind. The demand to know the material, and being able to handle tough questions (and even foul off unfair ones) was more like I’ve seen from George than anything else I’d seen in law school.
He was, then, a great professor, possibly the best I had in law school. I got a framework for understanding equal protection analysis that carried me through a case that my dad and I won in the Supreme Court. Afterwards, I learned how loyal he was to his students, caring about what was going on their lives and the like.
Well, Pike, we’ve had the argument before. States have rights, and not just in the sense of “state’s rights.” States can go to court to litigate their rights.
I maintain that in a federal republic unfavored states may not be relegated to inferior status. You disagree. One of us is right and one of us is wrong and the Supreme Court is going to tell us which in fairly short order.
Is the need to belong an adolescent one? Glasser ranks it as our second most important need, after survival.
What I meant, CRS, is the need is in some people no further developed than it was when they were adolescents. Individuality, like reading comprehension skills, can be arrested.
I’m surprised that you rely so unskeptically on the U.S. Supreme Court for validation. I’d have guessed a case or twelve that, from your perspective, the Court got wrong. I didn’t know you were such a strict Catholic on the infallibility of, say, a 5-4 split.
On the other hand, I do frequently run into a religious kind of allergy to evidence when I try to talk you out of your neo-Confederate bunker for some light and fresh air.
We have been arguing about this one a while, but please remind me which rights states have that are not theirs — i.e., not “states’ rights.”
And for the record, it’s not that you and I disagree on whether “unfavored states may … be relegated to inferior status.” We disagree on whether there is any silly such thing as “inferior status” under the VRA or any other federal law. It is telling you’ve not bothered to cite any constitutional authority that there is. It’s made up especially for that special CRS brand of persecution complex, whose motto is, “They think they’re better ‘n me.” Grow up.
Terminator: you musta really bombed Con Law under Cochran.
States don’t have “rights,” they (and the federal government) have powers. The question is whether Section Five of the Voting Rights Act is within the powers of the federal government. It clearly is. What the conservatives seem about to do is hold that under mushy concept (mushy because it has neither textural origin nor clear demarcations), “federalism,” limits that federal power.
And to add to what NMC says, which I’ve said before: if EVER an amendment was unmistakably intended to trump any “federalism” concern, it was the 15th Amendment, just like the 14th. The dead of the Civil War were still rotting in their graves when they were enacted.
@ColRebSez: Mississippi was not reduced to an inferior status. It strove mightily through treason, intransigence, wickedness and lawlessness to earn its inferiority. The only question in 2013 is whether you stand with those who got it to the bottom of the shit pile and work hard to keep it there, or don’t.
Scalia is mocked. He should be. Voting a “racial entitlement?” I guess in his line of thinking women’s suffrage amounted to a “gender entitlement?” Really, Scalia? What a mook!
Crispin, Scalia never said voting was a “racial entitlement.” But keep on waving that bloody shirt.
Scalia said the VRA was a racial entitlement. If my right to vote is protected by the VRA, and the VRA is mocked as a “racial entitlement,” then that justifiably leads me to infer that my right to vote is a “racial entitlement.”
Like they say, the jury is entitled to its reasonable inferences from the evidence.
Yet the “racial entitlement” crack wasn’t the most appalling thing he said. That honor goes to his reasoning — oh, have mercy on us all, his reasoning — that the Senate’s 98-0 vote to extend Section 5 of the VRA is evidence that the wisdom of keeping the law is now beyond Congress’ capacity or control. That was the true jawdropper, the gobsmacker, the flabbergaster that tells us that Scalia is simply too bloated to burn any energy on a facade of intellectual integrity. His originalism is as result-driven as any other jurisprudence.
PB: yep. Heads I win, tails you lose. Votes against the law show it’s not proper; votes for, that it’s not needed.
Regarding the Voter ID crusade in Mississippi, I recently learned how difficult the state has made it to get a state ID. I know of a 23 year-old young man who lives with his grandmother, does not drive, does not have a job, tried to get an ID and was refused because he did not have a utility bill or lease or pay stub in his name with his home address. The grandmother was there with an affidavit that he lived with her at her address. The young man had his Mississippi birth certificate. But he could get no ID. I looked online to verify the rules and found similar complaints from other cases, including one from a woman who tried to help her 89 year old grandmother who lives with family get a state ID. She was denied because she did not have any bills in her name. Since when do you have to buy a commercial product – i.e. pay rent or have a utility bill in your name – in order to qualify as a resident of Mississippi? Is this part of the Voter ID law? Is it really supposed to be this difficult for the old, the poor, and the young who live with family to get an ID? Are college students who live in off-campus apartments able to get state IDs, while college students who live in dorms are denied? What exactly is the problem that this is supposed to be preventing?
Q:”What exactly is the problem that this is supposed to be preventing?”
A: Voting.
Interesting points, Researcher. If you read the history books, they will tell you that property qualifications for voting went out in the Jacksonian era. Apparently not!
Researcher, just out of curiosity, was the 23-year-old black or white?
Also, isn’t the recent inspector general’s report that the civil right’s division of the justice department has been totally politicized and racialized interesting? So we’re supposed to support the Voting Rights Act when it’s been proven that it’s actively being used by a corrupt and racist justice department to discriminate against Republicans and whites? Nope!
Years ago I served as a poll worker for a friend of mine who was running for local office as a Republican. The polling place was at an elementary school off Medgar Evers. Apparently no white voters at all. I was there all day, no problem. Except, as a poll watcher, I can tell you that if there were fraud going on, I would not be in a position to tell. However, practically 100% of the voters had a poll worker assist them in making their selections. Whether the workers waited to be asked, I cannot say. Anyway, before the ballots were counted, some black men claiming from they were from the Democratic party showed up and tried to engage me in an argument – claiming I had done all these things when all I had done was stand there – with the obvious purpose of getting me thrown out. I called a friend for backup and we made it through without further incident.
There were two things that struck me as ironic that day. There was another poll watcher there on behalf of a Republican or Republicans. She was black. She whispered to me that she didn’t ever reveal that information if she did not have to and no one bothered her (our paperwork would have revealed that but I guess no one even asked for hers). But the craziest thing was that there were a bunch of young people wearing sweatshirts identifying them as federal poll watchers. They were outside apparently making sure white people didn’t interfere with black voting. But the only interference was black people trying to get me, a white woman, to leave. ( And I rarely vote Republican and then only on the local level).
I don’t pretend that my one experience is universal. But I did think it was interesting.
The birth-certificate-to-vote issue is before the Supreme Court next week, courtesy of Arizona.
Jane, years ago (as well) I was a poll watcher in Marshall County for a legislative candidate. The United League, a somewhat militant black group that sometimes benefited from petty violence against those blacks who refused to support its boycotts or other political efforts, was active. Black voters, particularly older black voters, were met as they came into the voting place, sometimes by some pretty threatening men, and asked if they needed “help” with their ballot. It was an offer many were afraid to refuse, and needless to say they voted the United League ballot.
Not long afterward I was working as a poll worker and one of the United League men was also a poll worker. He was a nice older man. I could hear him as he assisted the voters, and he clearly was steering some of them to the United League candidates. To his credit, in one race I did hear him remind a few voters that they ought to know one of the candidates that was not on the League slate because the candidate lived near them or had some other connection.
There is a real problem with assisted voting. I don’t know how it is today, but certainly there have been elections where blacks have been intimidated by other blacks to vote the “party” line, and have been forced to accept help when they did not need it. I’m sure there have been abuses by whites as well, but in recent years the push has been for black solidarity at all costs. My view is that there needs to be some type of safeguard on these ballots, because if the people truly are illiterate, how are we to know the partisan-allaigned person who proffers his services as they come in will vote the ballot honestly?
Changing the subject, but again years ago I witnessed two opposing candidates for constable vote and both voted assisted ballots because they could not read well enough to vote on their own. I don’t remember which man won, but some years later both managed to be elected as county supervisors. So 40 percent of the county board of supervisors was illiterate.
In that election, a lot of people were coming in with a piece of paper telling them who to vote for. And some people were like “vote for the Ds.” Being one of the few people in Jackson able to use the Post Office stamp machine (the one that asks you 20 questions for every envelope) it would not surprise me if most Jacksonians needed help to use a voting machine. And I realize I am the most cynical person on the planet. In my defense, it is genetic and there is nothing I can do about it.
The elections I reference were actually paper ballot elections. But yes, I agree that the voting machines can be a bit confusing.
Personally I would prefer that we go back to some form of paper ballot.