Tuesday, June 25, 2013

Two Thousand Years Later, History Repeats Itself

16 Then two prostitutes came to the king and stood before him. 17 The one woman said, “Oh, my lord, this woman and I live in the same house, and I gave birth to a child while she was in the house. 18 Then on the third day after I gave birth, this woman also gave birth. And we were alone. There was no one else with us in the house; only we two were in the house.19 And this woman's son died in the night, because she lay on him. 20 And she arose at midnight and took my son from beside me, while your servant slept, and laid him at her breast, and laid her dead son at my breast.21 When I rose in the morning to nurse my child, behold, he was dead. But when I looked at him closely in the morning, behold, he was not the child that I had borne.” 22 But the other woman said, “No, the living child is mine, and the dead child is yours.” The first said, “No, the dead child is yours, and the living child is mine.” Thus they spoke before the king.

23 Then the king said, “The one says, ‘This is my son that is alive, and your son is dead’; and the other says, ‘No; but your son is dead, and my son is the living one.’” 24 And the king said, “Bring me a sword.” So a sword was brought before the king. 25 And the king said, “Divide the living child in two, and give half to the one and half to the other.” 26 Then the woman whose son was alive said to the king, because her heart yearned for her son, “Oh, my lord, give her the living child, and by no means put him to death.” But the other said, “He shall be neither mine nor yours; divide him.”27 Then the king answered and said, “Give the living child to the first woman, and by no means put him to death; she is his mother.” 28 And all Israel heard of the judgment that the king had rendered, and they stood in awe of the king, because they perceived that athe wisdom of God was in him to do justice.  (1Kings 3:16-28, ESV)

The five most conservative judges on the Supreme Court, at other times claiming to be supporters of judicial restraint, earlier today in effect struck down (text of ruling, here) the 1965 Voting Rights Act.  The New York Times explains

The majority held that Section 4 of the Voting Rights Act, originally passed in 1965 and since updated by Congress, was unconstitutional. The section includes a formula that determines which states must receive pre-approval.

The court did not strike down Section 5, which allows the federal government to require pre-approval. But without Section 4, which determines which states would need to receive clearance, Section 5 is largely without significance — unless Congress chooses to pass a new bill for determining which states would be covered.

And of course this Congress, which unless it is considering an amendment-laden labyrinthic immigration bill promising to make an improving situation much worse, is highly unlikely to approve anything... particularly if it makes it easier for minorities to vote. As Justice Ginsberg noted in the dissenting opinion

the record for the 2006 reauthorization makes abundantly clear [that] second-generation barriers to minority voting rights have emerged in the covered jurisdictions as at­tempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions.

But it really isn't necessary to hear from Justice Ginsberg to understand that this is an absurd decision.  The Court did not act on Section 5, thus leaving it in place, but as Huffington Post legal expert Ryan J. Reilly and Mike Sacks note

The court’s opinion said it did not strike down the act of Congress “lightly,” and said it “took care to avoid ruling on the constitutionality of the Voting Rights Act” back in 2009. “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.”

Congress, the court ruled, “may draft another formula based on current conditions.”

Congress enacts a law, renews it four times- the last in July, 2006.  And precisely because Congress was satisfied with the legislation and did not alter Section 4, the Chief Justice of the United States Supreme Court says the court "leaves us no choice but to declare" it unconstitutional.    Congress likes it; we can't have that.  A better case of judicial activism would be hard to find.

And it's a textbook case of something additional- judicial cowardice, something Roberts is not unfamiliar with.  In choosing to uphold the Affordable Care Act, Roberts torturously argued that the health care mandate was constitutional not under the Commerce Clause but under Congress' right to tax.  He thus eroded the Commerce Clause, a key to progressive legislation, while keeping the Court out of election year politics and thus preserving its elite stature.

So instead of simply striking down the Voting Rights Act and thereby risking being widely considered insensitive to civil rights, the Court invalidates a key section and tosses a hot potato back to the legislative branch, which already had made clear its satisfaction with the law. But while Repubs have been willing to compromise on immigration because they fear extinction by demography, they have little incentive to agree to resurrect Section 4, which, by making more difficult the effort of states to stymie voting by blacks, has caused them serious electoral headaches.

King Solomon could have done the same as the Court's majority did today.  He could have sliced the baby in half.  But that would have been gutless- and King Solomon was not gutless.

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