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Roger Taney’s Knife

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Great piece by Adam Sewrer about how John Roberts is trying to make neoconfederacy great again:

But “race neutral” methods worked well enough to disenfranchise Black Americans even without white primaries.

These methods were swept away by the 1965 Voting Rights Act, which not only enforced the Fifteenth Amendment’s protections against racial discrimination in voting but also placed jurisdictions with a history of such measures under federal supervision to keep them from being reimposed.

That worked. That is, it worked until Chief Justice John Roberts decided that such protections were no longer needed. “Our country has changed,” Roberts announced in his 2013 opinion in Shelby County v. Holder, which rendered useless the provision allowing the federal government to preempt discriminatory voting changes in jurisdictions with a history of discrimination. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements,” Roberts wrote. In effect, the chief justice held that the real prejudice was not the disenfranchisement of Black Americans—no longer a serious risk—but the Voting Rights Act’s treatment of states with a history of disenfranchising Black Americans.

Roberts’s opinion doesn’t actually say what part of the Constitution the formula that Congress developed for enforcing the Voting Rights Act violated. Instead, he declares it a “dramatic departure from the principle that all States enjoy equal sovereignty.” This principle does not appear in the text of the Constitution, but it was the basis for several infamous decisions, including the 1857 Dred Scott ruling, in which Chief Justice Roger Taney declared that Black Americans could not be U.S. citizens. For that reason, the legal scholars James Blacksher and Lani Guinier wrote in 2014 that Roberts’s rationale in Shelby County was “based on the jurisprudence of slavery.”

The chief justice’s affection for “equal sovereignty” reflects not the overt racism of a McKenna or a Taney, but a nostalgia for an antebellum Constitution that was forever changed by the Reconstruction amendments, a revolution the right’s jurists have been loath to accept. So instead of citing Dred ScottRoberts chose a few minor cases and an opinion he had written in 2009, which had invoked the concept of equal sovereignty for the first time in decades. Roberts knew which knife he wanted to use to gut the Voting Rights Act, but he had to wipe Taney’s fingerprints from the handle first.

Comprehensive reform of the federal judiciary is desperately necessary.

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