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Constitutional Power in the Wake of Shelby County v. Holder

Power Grab by the Roberts Five

by ROB HAGER

Bravo Greg Palast ["Ku Klux Kourt Kills King's Dream Law, Replaces Voting Rights Act With Katherine Harris Acts"].  The Roberts 5 richly deserves the label of Ku Klux Kourt.  The black robed five are as much vigilantes running roughshod over law and the Constitution on behalf of the money power who would enslave us all, as those white robed characters who served the slave power of another time.

These legislators in robes no longer deserve the dignity of caling themselves a “court” because it in not judicial power that they are exercising.

The 15th Amendment did very little after Reconstruction to expand democracy to all citizens.  The 1965 Voting Rights Act, King’s Dream, and arguably the most important and effective law in American history, did what the Constitution could not.  But on June 25 Chief Justice John Roberts and his gang in their 5-4 decision in Shelby County v. Holder gutted the key feature of the VRA which gave it such amazing efficacy for quickly enfranchising the oppressed then living under Jim Crow.  See  A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009).

The Shelby County case is only one in a series of cases in which members of the Roberts 5 abandoned their role as judges to assume legislative powers on profoundly important political questions without effective response from the country or its institutions.  This is just the latest and, unless strongly checked,  will not be the last case in which the Roberts 5 have fulfilled James Madison‘s warning that “the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution.”

After five justices  (3 of them members of the Roberts 5) blatantly stole the 2000 election, the most prominent prosecutor in the country wrote a book that amounted to an indictment of those justices for the high crime that “none dare call treason.”  Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (2001).  But liberals in Congress did nothing to strip the Court of authority to intervene in elections because of their belief in the ideology of judicial supremacy, the ideology that delegates to 5 justices the power to amend and deface theConstitution at will.  They worried what would happen to Brown v. Board, the seminal school desegration decision, if we attack  judges for their wrongdoing?  As if we would have more segregated schools in the 21st century if it were not for the Supreme Court

Then when the Court  undermined Brown itself in Parents Involved, 551 U.S. 701 (2007), Justice Stevens’ wrote, dissenting, “no member of the Court I joined in 1975 [which also had a Republican majority] would have agreed with today’s decision.”  Not one. But liberal judicial supremacists still dreamed that the Supreme Court that started in the New Deal and lasted about four decades was the norm, and the current aberration will pass if the liberals just have enough patience and uphold the undemocratic ideology of judicial supremacy.

Then came Citizens United, one of six decisions since 2006 (a seventh is coming next term) by which the Roberts 5 have overthrown democracy itself on behalf of the money power by extending its mandate for corrupt elections.  But still, the liberals who believe in judicial supremacy have done nothing, except play into the hands of the Court.  They politely divert energies to the futile and counterproductive advocacy of a Constitutional Amendment, their judicial supremacy ideology preventing them from seeing the obvious.  It is not the Constitution that is wrong and needs changing. It is five justices on the Court that are themselves acting in blatant and unrestrained violation of the Constitution, over and over again, that need correcting.  Such lawless judges will predictably give any amendment of the Constitution the same cavalier treatment they are giving to the current Constitution.

These liberals refuse to use the power contained in the Constitution as a check and balance on the Court because of their adherence to the logical fallacy of the slippery slope.  Article III, Sec, 2, Clause 2 Sentence 2 which gives Congress control over the appellate jurisdiction of the Supreme Court is frequently invoked by Republicans seeking to overturn Supreme Court decisions.  But it scares the liberal judicial supremacists who remember only those four decades when the Court served as guardian of democracy as though that era defines the fundamental nature of the Supreme Court, rather than understanding that period as being  an exception in American History.   Without judicial supremacy, they worry: What would happen to Brown v Board?

It was the Supreme Court under that servant of the slave power, Chief Justice Roger Taney, that can be said to have been most responsible for causing the Civil War as a result of its very first decision that exercised judicial supremacy over Congress.  Dred Scott (1857) declared Congress’s carefully negotiated 1820 Missouri Compromise that banned slavery from northerwestern terrritories unconstitutional.  This power to declare territories to be free states had been exercised from the time the Constitution was drafted, in the 1787 Northwest Ordinance.  That law banned slavery from Ohio to Minnesota.

This power of Congress to exclude slavery from the territories and from newly admitted states was the premise for the long-game by which slavery would be first contained in the cotton-growing South and then abolished by law once the slave states were outnumbered.

The Taney Court upset 70 years of sensitive political negotiations and compromises on this defining issue of whether the promises of the Declaration of Independence could eventually be realized in the United States.  Taney redefined the Constitution as being a racist document, which imposed the most extreme view upon an ongoing debate over the still enormously respected Constitution.

Two years later in Abelman v Booth (1859) the Roger Taney Supreme Court again struck against the Constitution.   Abelman  was the first case where the Supreme Court exercised judicial supremacy over states in order to overturn a state Supreme Court decision refusing to enforce an Act of Congress as unconstitutional.  The Wisconsin Supreme Court made a thorough analysis of the Fugitive Slave Act of 1850 and the Constitution in reaching its conclusion that the 1850 law violated  the Constitution.  By asserting judicial supremacy over Wisconsin and the right of any state to make its own interpretation of the Constitution,Taney again overturned 70 years of intricate sustained jousting with the slave states over this complicity with evil, as the free states increasingly came to see the fugitive slave issue.

These two cases in the final years before the War attempted to impose the Court’s pro-slavery opinions on the meaning of the Constitution with respect to these two issues upon which there had been intensive sectional debate from the very beginning: the authority of federal legislation to abolish slavery in the territories  and in newly admitted states, and the federal authority to catch fugitive slaves and to deny due process in doing so.

Strangely, the Civil War South has become identified with state’s rights.  But up to the outbreak of the Civil War it was the slave power South through its control of the Supreme Court, the Presidency and the Senate that denied Wisconsin’s  rights and sought to impose a centralized pro-slavery version of the Constitution on the states.  It was abolitionist William Lloyd Garrison who advocated secession in those years.

By seeking to terminate further political debate over the proper interpretation of the Constitution, the Court certainly hastened and probably itself caused the Civil War.  The side which could best convince its adherents that it was the proper defender of the Constitution won a moral victory that directly yielded political, including potential military, power.  Americans in the early 19th century loved their Constitution and were prepared to fight for it.  The War was in effect fought over the proper meaning of the Constitution with regard to slavery, an intricate and pervasive debate over the Constitution that had its champions like Salmon Chase and Charles Sumner in the North, and their counterparts in the South.

For example, Sumner strongly supported the Wisconsin Supreme Court decision in his Senate speech on February 23, 1855, reasoning with powerful and extended legal argument that the 1850 Act  was “an assumption by Congress of power not delegated to it under the Constitution, and an infraction of rights secured to the States.”   In the case of Sumner, he was such an effective expounder of the proposition that the Constitution did not support slavery that the slave power attempted to assassinate him on the floor of the Senate on May 22, 1856.  The control of the judiciary by the slave power resulted in a mere slap on the wrist for the would-be assassin who was only thwarted in the act by witnesses as he continued beating an unconscious Sumner with his gutta percha cane.   Southern apologists have explained away this assassination attempt as a manifestation of southern “honor,” rather than as a deliberate tactic to win the constitutional argument by removing the most effective advocate of an anti-slavery Constitution.

Dred Scott was an appallingly written and reasoned decision that drew the well-reasoned oppostition of lawyer Abraham Lincoln.  T. Roosevelt explained that “Lincoln’s … great public career began, and was throughout conditioned by, his insistence, in the Dred Scott case, upon the fact that the American people were the masters and not the servants of even the highest court in the land, and were thereby the final interpreters of the Constitution.  If the courts have the final say so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people.”

These cases in which the slave power used its control over the Supreme Court to win what they could not get from Congress alone are the origins of the two-fold judicial supremacy doctrine that claims for the Court authority to override both the separation of powers and also federalism.  Since Lincoln won the war over this question of judicial supremacy, while Taney died a widely reviled bankrupt insulted by Sumner and ignored by Lincoln, one would have expected the judicial supremacy ideology to have died with Taney during the Civil War.  But the dotrine was revived to convert the 14th Amendment to empower railroads and other robber barons during the long Gilded Age of the late 19th and early 20th century.

This historical context for the 15th Amendment’s guarantee of the right to vote is important for  understanding exactly how the Supreme Court violated the Constitution in Shelby County v. Holder.  The Court invalidated a law specifically authorized by the 15th Amendment on “federalism” grounds that a state has power over its own election laws.  In another case last term where federalist concerns were presented to the Court as a reason to uphold Montana’s right to enact its own election laws that would safeguard the integrity of its elections, the Court totally ignored those concerms and summarily forced Montana to accept the corruption for state elections mandated by Citizens United for federal elections  If Citizens United  is the Dred Scott of the overthrow of democracy by the money power, then Montana’s case was its Abelman v Booth.

The Montana case shows the Supreme Court’s concern with federalism to be opportunistic, willing to turn the Constitution on its head.  In election matters, as Justice Ginsburg’s dissent in Shelby County points out, it is Congress generally that has been expressly given the power to enact legislation on the manner of holding federal elections and protecting constitutional voting rights.  id. note 2.  The Constitution gives the Court no role in these matters whether in federal or state elections, even reserving in Articel I, Sec. 5 the power to “judge” elections to Congress.  This clause makes the only grant of the judicial power to Congress. other than for impeachments where the Court ackowledges it has no role to play.  The Constitution thus shows a wise intent to keep the judiciary out of elections.

Unlike Montana’s case where federalism concerns added to the elections clauses of the Constitution should have precluded any Supreme Court review of the Montana Supreme Court’s decision, Shelby County was decided under the Civil War Amendments (CWA).  Within the ambit of their application to the abolition of slavery, enforcement of civil rights and safeguarding voting rights, the CWA’s expressly abrogated states rights, or “federalism.”   It became the justification for the enormous cost in blood and resources of the Civil War to end “federalism” in these areas of national concern.

More importantly, in formulating these amendments and other election related amendments Congress expressly gave itself the power to enforce them by enactment of necessary legislation.   Lincoln had won the battle with the pernicious Supreme Court. Congress had learned the Lincoln’s lesson to  keep the Court out of reconstruction by taking the full power unto itself to decide what was necessary to enforce the CWA rights without interference of bogus constitutional objections coming from the direction of a biased and unelected Supreme Court.  Justice Ginsburg quotes a scholar in pointing out that the remedy for the Civil War “amendments was expressly not left to the courts.”

Chief Justice Roberts’ decision in Shelby County thus violates two fundamental consitutional principles in overturning a law the Congress enacted pursuant to its CWA powers.  First it breaches the separation of powers principles embedded into those amendments by Congress  in deliberate response to the irresponsible and fatal claims to judicial supremacy of the Taney Court.

Second, the Roberts’ decision attempts to undo the very outcome of the Civil War by reviving federalism concerns as a touchtone of validity on a subject matter where such concerns were expressly abrogated by the Constitution.  The racist and political motivations of the Roberts Court are clear because the Court paradoxicially denied only a year ago in the Montana case actual federalism concerns regarding state elections in a context where they had not been abolished by Congress and should therefore have been respected.  The common feature of these doctrinally inconsistent decisions is that the Montana case also served the interests of plutocrats in disenfranchising citizens from exercising the fundamental right of  exercising “the consent of the governed” in fair uncorrupted elections.

Beyond those two fundamental constitutional violations, Justice Ginsburg points out the failure of the Court to even state the standard to which it was holding Congress – that is, the law under which unelected judges presume to second guess the elected representatives of the people.  Though the historical record would suggest that the Court has no proper role to play at all in this matter, history since that time has given the Court a minor role of determining whether what Congress has done in excercing its plenary CWA  powers was, under the circumstances, “rational.”  Since Justice Ginsburg goes into great length with regard to the factual circumstanes considered by Congress and upon which the rationality of Congress’ reauthorization of the VRA could not remotely be questioned, the Court instead says it is not even interested in this extensive record proving the rationality by Congress.  This is further evidence that in this decision the Roberts 5 were not acting as a court confining itself to the exercise of judical powers.  It refuses to state the rule under which it is exercising authority, and then refuses to assess the facts to which such a rule would apply.  This is the very definition of the judicial process which was rejected by Roberts.

Beyond those violations, Justice Ginsburg shows that since the reauthorization of VRA’s preclearance authority would be uncontestably needed and rational with respect specifically to Shelby County and Alabama generally, due to their “sorry history” of violations, there was no basis for the Court to rule about the application ot the preauthorizaton requirements to other possible plaintiffs or contexts.  That is, if the Roberts 5 were acting within their judicial authority to decide actual cases of parties before them as is required under Article III they would have no occasion to extend their inquiry generally to parties not before the court who might have a claim of unfair or irrational treatment.

Justice Ginsburg labels as “hubris” the Court’s venture into giving advisory opinions about the application of the law to parties not before the Court.   Interestingly this is an approach that has been limited exclusively to First Amendment litigation because of “chiling effects” of restraints on free speech.  This technique of deciding cases of parties not before it was therefore used in Citizens United  for justifying that advisory opinion.  (There was no citizen before the court in Citizens United claiming that they wanted to hear more corporate advertising – though that was the “right” which the Court purportedly protected in that case.)

In Shelby County  the only parties before the Court could make no credible response to the fact that their own proven racist conduct justified use of Congress powers to require pre-authorization of changes in their election laws.  So the Court argued some other case would violate the Constitution.  But that is not how the judcial process works.

Roberts and his gang in this and other cases routinely invent whatever reasons they need to serve plutocrats.  In this case their goal is clearly to suppress the franchise of persons who would vote against the plutocrats, as Greg Palast describes.  Unable to make any case that what Congress has done in reauthorizing the VRA to require pre-authorizaiton of Shelby County election law changes is irrational, the Roberts 5 premise for its decision is no different than, as Jutice Ginsburg pointedly put it, “like throwing away your umbrella in a rainstorm because you are not getting wet:”  The Court reasoned that because the VRA has been effective to thwart attempts to suppress the votes of citizens, its protections are no longer needed.

The Court in Shelby County, as it did in Citizens United, and a series of other cases, has blatantly violated the separation of powers by appointing itself a super-legislature on the most profound issues of national import.   There is no call here, any more than there was needed in Citizens United and the numerous other cases where the Roberts 5 are using these same tactics, for a constitutional amendment to change the Court’s reading of the Constitution.  To use Justice Ginsburg’s apt umbrella metaphor the Roberts 5 utilize excuses just as irrational as the simpleton who refuses to investigate the evidence all around of rain, refuses to accept the accepted test that rain is wet, and then throws away the umbrella as unnecessary while alleging those who would keep the umbrellas to be irrational.  Umbrellas are necessay, they say, only after you are already wet.   If a legislature had made such a choice it would be considered irrational.  But when the Court makes it, judicial supremacy makes it the final word.

These five do not care about determining the facts that judges are hired to deal with, or what anyone before them thought the Constitution means.  This case again overturns precedent just as Citizens United did.  The parallels to the non-judicial conduct in that case by Roberts’ Shelby County opinion are many.  There is now a desperate need for Congress to finally make an effective response to the Supreme Court;s constitutional violations, expecially its violation of the separation of powers by grabbing legislative powers unhinged from judicial process.

Perhaps this case that seeks to undo the outcome of the Civil War and relegate many citizens primarily in the South back to second class status will jar Congress out of its torpor.  The public must demand that Congress use its Article III  constitutional power to strip the Supreme court of appeallate jurisdiction over any case arising under the Voting Rights Act that questions Congress’s authority under the 15th Amendment to guarantee the right to vote in federal and state elections.  At the same time Congress should strip the Supreme Court of jurisdiction over its “money is speech” decisions under the First Amendment, which also serve to disenfranchise the vast majority who cannot buy politicians and policy.  These are closely related and overlapping issues that should be dealt with in an omnibus bill that strips this Court of as much of its judicial review powers as needed to contain the Roberts 5 within their proper judicial functions and especially remove them from any further involvement with the inherently political question of elections.   Rachel E. Barkow, More supreme than court? The fall of the political question doctrine and the rise of judicial supremacy, 102 Colum. L. Rev. 237 (2002)

Because of the potentially irremediable damage these 5 are inflicting on the country in numerous areas of policy, if they fail to cooperate with this venerable limitation on their Article III powers, accepted by other Supreme Court decisions going all the way back to the early 19th century,  impeachment must be considered an appropriate remedy for judges who prove themselves to be the lawbreakers

As T. Roosevelt said in the Lochner era, another period like the pre-Civil War, Gilded Age, and the current period when the Supreme Court inflicted enormous injury on the country by violating the Constitution in service of plutocrats: “when a judge decides a Constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it is wrong. … it is both absurd and undignified to make a fetish of a judge or anyone else.”

Support that liberals lend  to the judicial supremacy ideology in the current era is an absurd and undignified “fetish.”   The slippery slope that they fear could be dealt with by adopting T. Roosevelt and the progressive’s proposal of a century ago tfor allowing the people to vote in a “recall” election on issues such as 5-4 decisions that affect everyone, and on which broad popular opinion thinks the Court got it all wrong.  Congress would  have the authority to conduct a referendum that it could declare binding on those voting for the law to determine whether Congress got the Constitution right, or whether these 5 judges who are all wet got it right.

Rob Hager is a public interest litigator who filed an amicus brief in the Montana sequel to Citizens United for Essential Information, an organization founded by Ralph Nader