Obamacare Navigators Knock–Senator Cruz Opens Door And Is Held Hostage

Obamacare mental health care navigators are said by reliable sources to have captured Senator Ted Cruz. They knocked on his office door and promised him a free Obamaphone and he fell for it. They are holding him hostage until the House repeals the Citizens United decision, passes the farm bill, funds the Affordable Care Act for ten years, passes a new Voting Rights Act, as well as a bill legalizing gay marriage nationwide and providing free wedding cakes for all such couples (or threesomes or foursomes if so desired).

Senator Bernie Sanders denounced Republican inflexibility on Cruz ransom conditions, noting that his own stated position had previously included a law jailing all CEOs of Wall Street firms and putting them in the stocks adjacent to Trinity Church for six months in all weather. Sanders remarked that he is now willing to compromise by providing umbrellas to cover executive heads in the rain.

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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.

False Equivalence on Equality

Some commentators have followed a familiar path of least resistance in interpreting the major Supreme Court rulings of yesterday and today. David Leonhardt of the NYT, for example, achieves superficial false-equivalence-correctness by tweeting: “Dems yesterday: The court should not overturn a bipartisan law. Repubs today: The court should not overturn a bipartisan law.” Leave aside the happiness I imagine plenty of Republicans (Ted Olson, for starters) feel today. The Court has the power of judicial review, but ought to use it wisely, to resolve actual cases and controversies on the basis of upholding the Constitution, especially its guarantee of equal protection of the laws regardless of majority opinion. The Voting Rights Act has been a powerful, landmark law to redress very real grievances and overcome horrible centuries-old injustices. It is obtuse and childish to equate it with the so-called Defense of Marriage Act, which had no such noble purpose in 1996–you can watch John Lewis’s anti-DOMA speech from 1996 on YouTube demolishing it on civil rights grounds–and looks utterly ridiculous now to most young Americans. Perhaps the Voting Rights Act could use tweaking and updating, but Chief Justice Roberts was way out of his depth in dismissing the legislative renewal of 2006 as senseless. And no one paying attention could equate Justice Ginsburg’s pointed, forceful yet civil dissent with Justice Scalia’s ugly and abusive trolling.

There may well be equivalence among politicians, bureaucrats, and, yes, all of us in that we seek either reelection or reconfirmation of our existing opinions. The gay marriage decisions today will, as time goes on, appeal to a wide majority of Americans because they affirm core parts of our self-image and self-understanding: Justice Kennedy affirmed the “equal dignity of same-sex marriages,” though without, yet, invalidating the indignity nationwide. To use a Civil War term, he was not ready yet to make “freedom national.” But the rapid momentum toward legal, civil equal treatment is clear, and the main lines of the decision are relatively clear and clean. Not so with the impatient, tortured, Panglossian lameness of Justice Roberts’ majority ruling gutting the Voting Rights Act. Benjamin Franklin, archetypal American for many, termed his youthful sins mere “errata.” We might like to take up Justice Roberts’ invitation to reduce our historical stains to errata. Our real history, though, contains some awful messes. If we pretend otherwise, do we really make it easier to clean up and move beyond the messes?

The reflexive pox on both your houses mindset is an easy default position–but in this case very hard to defend with detailed and informed historical or moral arguments.

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?

You Can’t Hurry Happy Forgetting

This year’s gambit by the so-called conservatives on the Supreme Court to invalidate the Voting Rights Act may or may not succeed. If it does it will make a sorry mess for several reasons. The argument that states must be treated equally based on Article IV of the Constitution and the Tenth Amendment is ignorant, trifling, and unhistorical. States are guaranteed proportional representation in the House, equal representation in the Senate, and protection against foreign invasion. The Tenth Amendment is not revoked by the post-Civil War Amendments outlawing slavery; guaranteeing due process, equal protection of the laws, and the privileges and immunities of citizenship to all Americans; and guaranteeing the right to vote (though not yet to women)–but it is qualified and placed in a new light. The Thirteenth, Fourteenth, and Fifteenth Amendments all explicitly gave Congress “power to enforce…by appropriate legislation.” If that did not relativize the Tenth Amendment what would? Moreover the reentry of states that had seceded back into the United States was contingent on acceptance of the Reconstruction Amendments. It took another one hundred years after the abolition of slavery until the Voting Rights Act of 1965 was signed by President Lyndon Johnson. This law finally “shifted the advantage of time and inertia from the perpetrators of the evil to the victims,” as Chief Justice Earl Warren wrote in his 1966 Katzenbach opinion upholding the Voting Rights Act as a valid exercise of Congressional power to enforce the Fifteenth Amendment.

Section Five of the Voting Rights Act does not treat all states equally, which because of the history involved is not necessarily the same as inequitably. It constrains several Southern states, as well as Alaska, Arizona, the Bronx, Brooklyn, and Manhattan. Several towns in New Hampshire were recently allowed to “bail out” of the Section 5 “preclearance” portion of the law. Those towns had imposed poll tax requirements in the past. But the core impact of the Voting Rights Act was and is in the former Confederate states, where some have complained, sometimes accurately, that “we have repented, and we have reformed.”

Lincoln said in his second inaugural address that all knew that slavery “was, somehow, the cause of the war.” We all know that the issue now is whether the un-conservatives on the Court decide, against the near-unanimous voice of both houses of Congress, expressed repeatedly since 1965, that it is time for “happy forgetting.” Harald Weinrich, in his remarkable work Lethe:The Art and Critique of Forgetting, follows Freud in distinguishing between “unpacified forgetting” and “pacified forgetting.” For Weinrich the path from unpacified forgetting to a post-therapeutic pacified forgetting relies on the art of memory as a necessary auxiliary in the process of working through (pp. 132-36). And Paul Ricoeur, in his Memory, History, Forgetting, writes of an ars oblivionis, a happy forgetting, that could become a double of ars memoriae, happy memory (p. 412). But Ricoeur is “troubled by an excess of memory here, and an excess of forgetting elsewhere, to say nothing of …abuses of memory–and of forgetting” (p. xv).

Is this Supreme Court really best for the task, or up to the task at all, of judging “the just allotment of memory” (Ricoeur, ibid.) in this case? It is more than just another case. It might be best if they were a little less eager and sure of themselves here. When John Roberts informs us that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race,” he demonstrates an admirable grasp of tautological logic but probably an unsure sense of the complex history involved. Antonin Scalia, remarking on the lopsided vote to reauthorize for 25 years in 2006, said at the oral argument that the near-unanimity was evidence that this “is not a matter that can be left to Congress”! Is the bottom line here that the Court is going to invalidate the law that, warts and all, finally gave Americans of all races effective and real suffrage–on the ground of peevishness? Because Congress failed to jump after the Northwest Austin decision less than five years ago? They could just come right out and say: section 2 is good enough for you people, don’t even think that you deserve the advantage of time and inertia anymore.