I have a piece up about today’s Roberts Court atrocity. Read the whole etc., but I wanted to highlight a couple points. First, let’s be clear about Congress’s authority and why the majority’s focus on state sovereignty is utterly misguided, by starting with what Roberts would prefer to obfuscate, the relevant text of the United States Constitution:
We should start with the explicit constitutional authority for this legislation. The majority opinion asserts that “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” The problem, of course, is that the balance the framers and ratifiers of the Constitution of 1787 and 1789 established between the federal government and the states in supervising voting has been rendered obsolete by the Civil War Amendments. Section 2 of the 15th Amendment states that “[t]he Congress shall have power to enforce [the 15th Amendment’s prohibition of racial discrimination in voting] by appropriate legislation.” There is no question about Congress’s authority to prohibit racial discrimination in voting. Legislation directed to this end does not interfere with any state “sovereignty” protected by the Constitution, and Congress should be given broad discretion to act.
Nevertheless, Chief Justice Roberts (speaking for the Court’s four other Republican appointees) held a crucial provision of the VRA unconstitutional. The majority did not strike down Section 5, but it did strike down Section 4—in other words, maintaining the “preclearance” provision but as of now not applying it to any states. According to Roberts, times have changed, and therefore Congress’s authority has changed as well. (Remarkably, Section II A of Roberts’s opinion, laying out a theory of state sovereignty on voting that justifies his palpable disrespect for Congress, does not mention the 15th Amendment at all.)
In fairness, I don’t have access to the special Federalist Society Constitution Roberts currently uses, in which the only Amendments are the Second, Tenth, and an Eleventh that says “own state” instead of “another state.”
Since some people are falling for the con, I’d also like to highlight Roberts’s phony “minimalism.” This kind of skill is important to learn. It’s what distinguishes us from the animals. Except the weasel:
Roberts’s seemingly modest opinion, therefore, is anything but. The odds that a new Section 4 can pass both houses of Congress and be the Goldilocks statute that will cover neither too many nor too few states to satisfy the Roberts Court’s inscrutable but consistently anti-Congress whims are roughly equivalent to the odds that Nancy Pelosi will be the Republican candidate for president in 2016. The effect of the majority’s opinion will likely be to quietly accomplish what Thomas’s inconveniently candid holding that Section 5 is unconstitutional would prefer to do directly.
Much more at the link. Anyway, today’s decision is well rooted in Supreme Court tradition — the tradition of Dred Scott, the Civil Rights Cases, and United States v. Cruikshank. It’s the culmination of the neoconfederate turn in the modern Republican Party.