John Roberts is a very patient man. Thirty years ago, as a young lawyer in Ronald Reagan’s Justice Department, he wrote memos attacking a landmark civil rights law that was enacted to ensure that all Americans, regardless of color, had the right to vote. And on Tuesday morning, as chief justice of the U.S. Supreme Court, he wrote the ruling that shreds the law.
Conservatives will praise the 5-4 decision to gut the core provision of the 1965 Voting Rights Act, and they will conveniently ignore the irony that “unelected judges” have intrusively trumped the people’s elected representatives.
Both houses of Congress had renewed the law four times since ‘65 - most recently in 2006 by a combined bipartisan vote of 488-22 - precisely because there was overwhelming documented evidence of ongoing voter discrimination in states and localities with long histories of bad behavior.
When Alabama’s legal challenge was aired in the high court back in February, Roberts and his allies suggested that the voting rights law was no longer necessary; and besides, in the immortal words of Antonin Scalia, the law was “a perpetuation of racial entitlement” - which was news to me, because I’d never realized that equal access to the ballot was a racial entitlement.
Plus, Roberts, in a ruling on an unrelated voting case back in 2009, had already signaled how he felt about the Voting Rights enforcement provision: “It represents an intrusion into areas of state and local responsibility,” and, besides, there was no longer a need for Justice to ride hard on the nine (mostly Southern) states that had a history of racism, because, as he put it, “Things have changed in the South.”
Roberts basically said that the law is obsolete. He said that even though the law empowered the Justice Department to fight local racism, there’s no such need anymore because that behavior doesn’t exist anymore (he refers to “eradicated practices”). He did craft a fig leaf - he invited Congress to revise and update the enforcement formula at the core of the law - but that’s a howler, because (as he well knows) this Congress can’t even pass a farm bill, and is so dysfunctional that anything more complicated than a Boy Scout resolution strains its collective cognition.
Thanks to the 2006 renewal of the law, which was supposed to extend until 2032, the Justice Department was able to thwart racism in 2012. Just two examples: When Texas Republicans enacted a voter-ID law that was crafted to disproportionately hurt minorities, Justice blocked it by invoking the law’s oversight powers. When Florida Republicans tweaked their state rules in an attempt to reduce early voting hours in ways that disproportionately hurt minorities, Justice blocked it by invoking the law’s oversight powers.
Now those powers are gone.
From now on, people who are turned away at the polls will have to file lawsuits at their own expense - and only after the voter-suppression schemes have already screwed them. That’s how the game worked before the Voting Rights Act went on the books in 1965. Roberts has turned back the clock.
And how ironic that he has done so by overriding the people’s elected representatives - specifically, the 2006 Republican House and 2006 Republican Senate, both of which concluded: “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th (right to vote) Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”
So much for that bipartisan legislative sentiment; Roberts and his court allies opted instead to “legislate from the bench.”
Conservatives typically use that phrase to complain about rulings they dislike - but not today. The Human Events website is already praising the Supreme Court for “taking away one of the clubs Attorney General Eric Holder has been using to beat common-sense voter identification laws into the dirt.”
See what I mean?
Dick Polman is the national political columnist at NewsWorks/WHYY in Philadelphia (newsworks.org/polman) and a “Writer in Residence” at the University of Philadelphia. Email him at dickpolman7@gmail.com.