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John Roberts Jim Crow

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Writing for the Court in South Carolina v. Katzenbach, Chief Justice Warren explained why Congress was justified in passing Sections 4 and 5 of the Voting Rights Act, based on the plenary authority granted to it by Section 2 of the 15th Amendment:

Congress exercised its authority under the Fifteenth Amendment in an inventive manner when it enacted the Voting Rights Act of 1965. First: the measure prescribes remedies for voting discrimination which go into effect without any need for prior adjudication. This was clearly a legitimate response to the problem, for which there is ample precedent under other constitutional provisions. Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims.

The Voting Rights Act was a a fulfillment of the purpose of the 15th Amendment, designed to stop precisely what states like Georgia are doing. It’s not a perfect remedy — obviously preclearance would be a dead letter under any Republican administration — but it’s certainly an appropriate one. But John Roberts decided that Roger Taney’s jurisprudence trumped the Reconstruction amendments, striking down the preclearance formula in an opinion with no basis in the text or structure of the Constitution and that is ludicrously illogical on its own terms, so here we are.

It should be noted, however, that this is not the only way in which Roberts is implicated in the appalling legislation passed by the Georgia legislature yesterday. At least in a state as currently closely divided as Georgia, democracy should be a check on the kind of power grab Georgia’s legislature made when it authorized itself to take over the administration of elections if it didn’t like the results. In a state that had democratic elections, this would be a very dangerous risk, but of course Georgia’s heavily gerrymandered state legislature put Republicans at virtually no risk of losing control, which encourages this kind of abuse of power.

If judicial review is good for anything, it’s to remedy this kind of abuse — legislators denying the state a republican form of government by insulating themselves from democratic accountability. But, of course, Roberts waved the matador’s cape at state legislative preemptions of democracy, in a decision that at least in terms of its consequences might prove even worse than Shelby County. John Roberts has been a staunch opponent of voting rights his entire professional career, and we’re living in the ugly world he has long envisioned.

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