Justice Roberts Guilty of Disorderly Conduct

The first draft, so to speak, of the opinion that “immobilized” (footnote 1 of Justice Ginsburg‘s dissent) section 5 of the Voting Rights Act came from Edward Blum of the so-called Project for Fair Representation, who celebrated the “return of constitutional order” today. Justice Roberts took his cue from Blum, stressing over and over the “equal sovereignty” of the states and the extraordinary deviance from that supposed Constitutional norm required by the VRA. Roberts did not hide his contempt for the 2006 reauthorization for an utterly unacceptable 25 more years–when it had so clearly been overdue for destruction by Roberts’ sophomore or junior year in college circa 1974. No matter that those reauthorizers included the President who nominated him, George W. Bush, as well as every single Senator who voted to confirm him (or not to confirm him–the VRA passed 98-0). Gutless fools, every one of them! The 2006 extension, wrote Roberts today, was based “on 40-year old facts having no logical relation to the present day.” Never mind the thousands of pages of testimony and documentation Congress considered, or Shelby County’s actual history of discrimination, which made it not only ineligible for the time being to bail out of the preclearance requirement but should have made it ineligible to bring a “facial challenge” to the VRA at all. Not to mention the numerous recent examples of clear racial discrimination Ginsburg cites against the majority’s willful amnesia. In Roberts’ remarkably bland and potted history of voting in the United States, he acknowledges (quoting from an earlier Court opinion) that the first century of “Congressional enforcement (of the 15th Amendment) can only be regarded as a failure,” but glosses over the nitty-gritty of racial subjugation and terrorism to hurry on to his main theme: the time for Second Reconstruction is up, now we move on the glorious new constitutional order, in which Texas and Mississippi and other states have already–yes, today–moved to do whatever the hell they feel like doing. An opinion, in sum, that is legally disorderly; and morally empty and blind.

Justice Ginsburg reads her Constitution and her history differently. Roberts picked at her arguments repeatedly, perhaps rattled at the prospect that her arguments might find 5 or more votes while he still sits on the Court, but he barely began to come to terms with the implications of her dissent. Ginsburg proclaimed doom and judgment on today’s majority: “the sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective” (36). The underlying reason for that failure, I would say, is the majority’s inappropriate sense of time scale. Their fantasy of a lost constitutional order restored puts some judicial issues in a more helpful perspective some of the time, but the United States Constitution, with us since 1787 or so, has provided a just, orderly framework for, say, blacks in Alabama for what percentage of the 226 years so far? Whose inconvenience and unaccommodation has really been more disorderly over the last 226 years? We should go back at least another 170 years though, should we not? Are you starting to feel like a man in unseemly and disorderly haste, Mr. Chief Justice?

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