Tag Archives: Kagan

What Voting Rights?

THANK YOU, THANK YOU to all of you commenters who made my day yesterday, and restored my faith in at least some of “we the people.” I especially needed to know the extent of your civic and political engagement, because the Supreme Court is busily erecting barriers to the most direct–and most consequential– form of engagement: voting.

In a stinging dissent to the Court’s majority opinion upholding Arizona’s assaults on the right to vote, Justice Elena Kagan began:

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other. If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary. Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually “contriv[ed] new rules,” mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966). Because “Congress had reason to suppose” that States would “try similar maneuvers in the future”— “pour[ing] old poison into new bottles” to suppress minority votes. Ibid.; Reno v. Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Souter, J., concurring in part and dissenting in part). Because Congress has been proved right.

Kagan continues for some forty pages, ending with paragraphs that–ironically–demonstrate that the current “conservative” Court is doing precisely what Republicans always insisted the Court could not and should not do: legislating from the bench, and disregarding the clear meaning of a legal text.

But then, at least, the majority should treat the Voting Rights Act as if it were ordinary legislation. The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be. It applies to any policy that “results in” disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law—cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. Cf. Shelby County, 570 U. S., at 547 (“[T]hings have changed dramatically”). But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

Read both the decision, authored by Samuel Alito (one of the most undistinguished jurists to sit on the high court) and the entire dissent by Kagan (one of the most powerful intellects to grace that same bench). 

And weep.

Happy Fourth of July…

 

Wow..Talk About Your Double Standards!

The Supreme Court recently announced it will hear pending same-sex marriage cases, prompting the increasingly unhinged American Family Association to issue a press release titled “Kagan and Ginsburg: Recuse Yourselves!”

Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” said AFA President Tim Wildmon. “Congress has directed that federal judicial officers must disqualify themselves from hearing cases in specified circumstances. Both Kagan and Ginsburg have not only been partial to same-sex marriage but they have also proven themselves to be activists in favor of it. In order to ensure the Court’s integrity and impartiality, both should recuse themselves from same-sex marriage cases. Congress has an obligation to Americans to see that members of the Supreme Court are held to the highest standards of integrity. The law demands it, and the people deserve it.

Because Scalia and Thomas haven’t given us any hints about their approach to the subject..cough, cough. (One of Scalia’s sons directs an Ex-gay “reparative therapy” group, and has declared that homosexuality doesn’t really exist.)

A few observations: first, judges (including Scalia) are entitled to have personal opinions. What we have a right to expect is that they will render decisions based upon precedent and sound constitutional analysis, rather than twisting their legal analyses to fit their policy preferences. (Hint: Ginsburg and Kagan are not the Justices most often accused of that behavior.)

Second–where were these defenders of “high standards of integrity” when their fellow-travelers Scalia and Thomas had frequent, obvious and quite real conflicts of interest?

Both Scalia and Thomas accepted speaking engagements (including cushy travel and accommodations) before ideological groups funded by the Koch brothers, although there were cases pending before the Court in which the Kochs were deeply interested.

Scalia went hunting with then Vice-President Cheney at the same time that Cheney was party to a case before the Court (another one of his sons technically worked for Cheney at the same time, as top lawyer in the Bush Administration’s Labor Department); Thomas has refused to recuse himself in cases where the outcome was very important to the (ideological) organization employing his wife. If a lower court judge refused to recuse under such circumstances, that judge would be sanctioned under the rules cited by the AFA.

I have news for the AFA: being a nice human being while serving on the Supreme Court (the conduct of which Kagan and Ginsberg are guilty) is not how we define a conflict of interest. Even being an narcissistic asshole (Scalia) or a petulant advocate of long-discarded constitutional theories  (Thomas) while serving on the Court is not a conflict.

Refusing to recuse yourself from cases in which you or your spouse have a direct financial interest, or from cases to which your hunting buddy is a party, is.