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.

Like What You’ve Read? Support CounterPunch
September 01, 2015
Michael Schwalbe
The Moral Hazards of Capitalism
Eric Mann
Inside the Civil Rights Movement: a Conversation With Julian Bond
Pam Martens
How Wall Street Parasites Have Devoured Their Hosts, Your Retirement Plan and the U.S. Economy
Jonathan Latham
Growing Doubt: a Scientist’s Experience of GMOs
Fran Shor
Occupy Wall Street and the Sanders Campaign: a Case of Historical Amnesia?
Joe Paff
The Big Trees: Cockburn, Marx and Shostakovich
Randy Blazak
University Administrators Allow Fraternities to Turn Colleges Into Rape Factories
Robert Hunziker
The IPCC Caught in a Pressure Cooker
Robert Koehler
Sending Your Children Off to Safe Spaces in College
August 31, 2015
Michael Hudson
Whitewashing the IMF’s Destructive Role in Greece
Conn Hallinan
Europe’s New Barbarians
Lawrence Ware
George Bush (Still) Doesn’t Care About Black People
Joseph Natoli
Plutocracy, Gentrification and Racial Violence
Franklin Spinney
One Presidential Debate You Won’t Hear: Why It is Time to Adopt a Sensible Grand Strategy
Dave Lindorff
What’s Wrong with Police in America
Louis Proyect
Jacobin and “The War on Syria”
Lawrence Wittner
Militarism Run Amok: How Russians and Americans are Preparing Their Children for War
Binoy Kampmark
Tales of Darkness: Europe’s Refugee Woes
Ralph Nader
Lo, the Poor Enlightened Billionaire!
Peter Koenig
Greece: a New Beginning? A New Hope?
Dean Baker
America Needs an “Idiot-Proof” Retirement System
Vijay Prashad
Why the Iran Deal is Essential
Tom Clifford
The Marco Polo Bridge Incident: a History That Continues to Resonate
Peter Belmont
The Salaita Affair: a Scandal That Never Should Have Happened
Weekend Edition
August 28-30, 2015
Randy Blazak
Donald Trump is the New Face of White Supremacy
Jeffrey St. Clair
Long Time Coming, Long Time Gone
Mike Whitney
Looting Made Easy: the $2 Trillion Buyback Binge
Alan Nasser
The Myth of the Middle Class: Have Most Americans Always Been Poor?
Rob Urie
Wall Street and the Cycle of Crises
Andrew Levine
Viva Trump?
Ismael Hossein-Zadeh
Behind the Congressional Disagreements Over the Iran Nuclear Deal
Lawrence Ware – Marcus T. McCullough
I Won’t Say Amen: Three Black Christian Clichés That Must Go
Evan Jones
Zionism in Britain: a Neglected Chronicle
John Wight
Learning About the Migration Crisis From Ancient Rome
Andre Vltchek
Lebanon – What if it Fell?
Charles Pierson
How the US and the WTO Crushed India’s Subsidies for Solar Energy
Robert Fantina
Hillary Clinton, Palestine and the Long View
Ben Burgis
Gore Vidal Was Right: What Best of Enemies Leaves Out
Suzanne Gordon
How Vets May Suffer From McCain’s Latest Captivity
Robert Sandels - Nelson P. Valdés
The Cuban Adjustment Act: the Other Immigration Mess
Uri Avnery
The Molten Three: Israel’s Aborted Strike on Iran
John Stanton
Israel’s JINSA Earns Return on Investment: 190 Americans Admirals and Generals Oppose Iran Deal
Bill Yousman
The Fire This Time: Ta-Nehisi Coates’s “Between the World and Me”
Scott Parkin
Katrina Plus Ten: Climate Justice in Action
Michael Welton
The Conversable World: Finding a Compass in Post-9/11 Times