FacebookTwitterGoogle+RedditEmail

Fun and Games with Scalia and Roberts

by CHRISTOPHER BRAUCHLI

There were two moments that purported to be moments of enlightenment in the case argued in late February 2013 in the United States Supreme Court.  One was an iteration of a clever legal theory and the other a little known and incorrect fact.  The legal theory was offered by Justice Scalia and the little known incorrect fact by Chief Justice Roberts.  The moments of enlightenment, if that they were, came during the oral arguments that the Court heard pertaining to the need for the continuation of Section Five of the Voting Rights Act of 1965.  That is the section of the Act designed to protect voting rights of minorities in jurisdictions where those rights were historically abridged by white officials.  The question before the Court was whether the need to protect the rights of minorities to vote still existed, given the open arms that all states now extend to voters of all colors and races.  (In 2012 a few states including, but not limited to Florida and Pennsylvania actually tried to make it harder for people to vote but they did it with the best of intentions. They were trying to prevent voter fraud that had not yet been detected but officials thought might be some day.)

Commenting on the fact that Congress had overwhelmingly reapproved section 5 of the Voting Rights Act when most recently called upon to do so, Justice Scalia explained that was not because members of Congress believed in the merits of the legislation but because they were intimidated by the phenomenon  that he called “the perpetuation of racial entitlement.” He  said that the only way the country can be protected from racial entitlements is if he and his colleagues on the Court say they are unconstitutional.  That is because, says Justice Scalia, members of Congress are very reluctant to be seen as withholding  support for a popular statute such as the Voting Rights Act that protects the voting rights of citizens. When it comes to balancing states’ rights with individual rights, Justice Scalia prefers states’ rights even if it may mean the occasional disenfranchisement or dilution of a voter’s rights. As he said during argument:  “ You have to show, when you are treating different States differently, that there’s a good reason for it.”  Protecting the right of a citizen to vote is not such a reason.

Chief Justice Roberts did not have to rely on the Scalia “cowardly Congress” theory to show why Section 5 was no longer important.  During the oral argument the Chief Justice asked the Solicitor General of the United States who was arguing in favor of upholding Section 5, if he knew which state had “the worst ratio of white voter turnout to African-American voter turnout.”  The Solicitor General, unprepared for such a question, confessed ignorance.  Later, Justice Roberts  asked the Solicitor General if he knew which state had the greatest disparity in registration and again the Solicitor General replied negatively.  Justice Roberts provided the answer to both questions.   He said it was Massachusetts. The answer the Chief Justice gave was wrong.

According to Massachusetts Secretary of State, William Galvin, Massachusetts has one of the highest voter registrations in the country.  A report in the Boston Globe disclosed that, irrespective of whether a neighborhood was predominantly white or predominantly black, the turnout of voters was almost the same.  In a predominately white neighborhood voter turnout was 68 percent and in the heart of Boston’s African-American community the turnout was 64 percent.  Commenting on the Chief’s statements, Mr. Galvin opined:  “I guess the point [Roberts] is trying to make is Mississippi is doing so much better they don’t need the Voting Rights Act. . . . [H]e shouldn’t be using phony statistics.  It’s deceptive, and it’s truly disturbing.”  (Mississippi made news in 1995 when it got around to ratifying the 13th Amendment to the U.S. Constitution that bans slavery.  Due to a clerical oversight the ratification only became official February 7, 2013. )

When a reporter called the Supreme Court to obtain evidence of the truth of the Chief Justice’s statement about Massachusetts, the spokeswoman for the Court referred the caller to the court transcript of the proceedings in which the statement was made.  In the lofty heights of the U.S. Supreme Court,  the ultimate authority for a false statement of fact made by a member of the Court is the false statement of fact found in the transcript of the proceedings.

The outcome of the argument is almost a foregone conclusion.  The only suspense is in waiting to find out if Massachusetts continues to be used to justify the ruling and whether the Court applies the Scalia Cowardly Congress theory to justify its ruling.  One thing seems certain-Scalia and Roberts will be the winners.  The voters will be the losers.

Christopher Brauchli is an attorney based in Boulder, Colorado. He can be reached at: brauchli.56@post.harvard.edu.

More articles by:

CounterPunch Magazine

minimag-edit

Weekend Edition
August 26, 2016
Friday - Sunday
Paul Buhle
In the Shadow of the CIA: Liberalism’s Big Embarrassing Moment
Andrew Levine
How Donald Trump Can Still be a Hero: Force the Guardians of the Duopoly to Open Up the Debates
Rob Urie
Crisis and Opportunity
Louisa Willcox
The Unbearable Killing of Yellowstone’s Grizzlies: 2015 Shatters Records for Bear Deaths
Charles Pierson
Wedding Crashers Who Kill
Richard Moser
What is the Inside/Outside Strategy?
Dirk Bezemer – Michael Hudson
Finance is Not the Economy
Jeffrey St. Clair
Roaming Charges: Bernie’s Used Cars
Margaret Kimberley
Hillary and Colin: the War Criminal Charade
Patrick Cockburn
Turkey’s Foray into Syria: a Gamble in a Very Dangerous Game
Ishmael Reed
Birther Tries to Flim Flam Blacks  
Brian Terrell
What Makes a Hate Group?
Howard Lisnoff
Trouble in Political Paradise
Terry Tempest Williams
Will Our National Parks Survive the Next 100 Years?
Ben Debney
The Swimsuit that Overthrew the State
Ashley Smith
Anti-imperialism and the Syrian Revolution
Andrew Stewart
Did Gore Throw the 2000 Election?
Vincent Navarro
Is the Nation State and Its Welfare State Dead? a Critique of Varoufakis
John Wight
Syria’s Kurds and the Wages of Treachery
Lawrence Davidson
The New Anti-Semitism: the Case of Joy Karega
Mateo Pimentel
The Affordable Care Act: A Litmus Test for American Capitalism?
Roger Annis
In Northern Syria, Turkey Opens New Front in its War Against the Kurds
David Swanson
ABC Shifts Blame from US Wars to Doctors Without Borders
Norman Pollack
American Exceptionalism: A Pernicious Doctrine
Ralph Nader
Readers Think, Thinkers Read
Julia Morris
The Mythologies of the Nauruan Refugee Nation
George Wuerthner
Caving to Ranchers: the Misguided Decision to Kill the Profanity Wolf Pack
Ann Garrison
Unworthy Victims: Houthis and Hutus
Julian Vigo
Britain’s Slavery Legacy
John Stanton
Brzezinski Vision for a Power Sharing World Stymied by Ignorant Americans Leaders, Citizens
Philip Doe
Colorado: 300 Days of Sunshine Annually, Yet There’s No Sunny Side of the Street
Joseph White
Homage to EP Thompson
Dan Bacher
The Big Corporate Money Behind Jerry Brown
Kollibri terre Sonnenblume
DNC Playing Dirty Tricks on WikiLeaks
Ron Jacobs
Education for Liberation
Jim Smith
Socialism Revived: In Spite of Bernie, Donald and Hillary
David Macaray
Organized Labor’s Inferiority Complex
David Cortright
Alternatives to Military Intervention in Syria
Binoy Kampmark
The Terrors of Free Speech: Australia’s Racial Discrimination Act
Cesar Chelala
Guantánamo’s Quagmire
Nyla Ali Khan
Hoping Against Hope in Kashmir
William Hughes
From Sam Spade to the Red Scare: Dashiell Hammett’s War Against Rightwing Creeps
Raouf Halaby
Dear Barack Obama, Please Keep it at 3 for 3
Charles R. Larson
Review: Paulina Chiziane’s “The First Wife: a Tale of Polygamy”
David Yearsley
The Widow Bach: Anna Magdalena Rediscovered
FacebookTwitterGoogle+RedditEmail