Very Brief Therapy in Quiet Rooms

No, I am not referring to the mayor of San Diego, who laughably proposes to efface his years of disgraceful behavior with two weeks of therapy. Nor Anthony Weiner, who has probably moved forward beyond brief therapy and is not easy to associate with quiet rooms.

Instead I have in mind the unusually frank public responses this week by former Justice John Paul Stevens and current Justice Ruth Bader Ginsburg (AKA Notorious R.B.G., as I explained in an earlier post) to the Shelby County v. Holder majority opinion by John Roberts that invalidated section 4 and may have effectively gutted section 5 of the Voting Rights Act. The message I take from both Ginsburg’s AP interview (and her dissent last month) and Stevens’ New York Review of Books article on Gary May’s Bending Toward Justice is that Roberts is judging in haste, asserting power that does not belong to him under the Fourteenth and Fifteenth Amendments; and more fundamentally that Roberts is misreading, misjudging, and foreshortening the vexed and troubled history that made and makes the VRA so needful. In short he has no patience for more than a brief therapy of less than 50 years, for a problem that has existed in more or less brutal forms for nearly 400 years here.

Reading a series of memos John Roberts wrote as a Justice Department employee in 1981 and 1982 as Congress was in the process of reauthorizing the VRA shows that he was impatient even then to restrict the uses of what Justice Ginsburg memorably called the VRA’s “umbrella.” Section 2 of the VRA, according to him, was good enough (he does not explicitly say “for the colored people”). An “effects test” for voting discrimination is “unacceptable,” as it would be “fairly easy to demonstrate that such practices (as at-large voting) have the effect of diluting black voting strength”–and we Republicans cannot accept that practices favorable to us should be deemed illegal, is the message. According to Roberts’ memo to the Attorney General on December 22, 1981, the Fifteenth Amendment “safeguards the right to vote only against purposeful or intentional discrimination on account of race or color.” The actual Fifteenth Amendment says no such thing: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have power to enforce this article by appropriate legislation.” That’s it, from beginning to end.

The young Roberts was insistent that “something must be done to educate Senators on the seriousness of this problem” (the horrors of adding an effects test to the good-enough-for-black-folks section 2, given that section 5, already in Roberts’ sights, had such a test). They need either a written warning along lines suggested by Roberts, or else a “thorough campaign of meetings (should be) undertaken.” One can imagine John Roberts in a quiet room with Republican Senators giving them brief therapy on their own political future–by saying that the therapy provided by the Voting Rights Act for just seventeen years, at that point, had gone far enough.

Has John Roberts succeeded in drawing the veil over the second Reconstruction? Stick around and see, as lawsuits and countersuits begin in Texas, and likely several other states.

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