The Bushes' Court

By William Boardman, Reader Supported News

28 June 13

Author's Note: My piece "Is Scalia a Troll" here on March 13 discussed the oral argument for the Voting Rights Act case, including the delicious irony that to find recent violators of the act, the court had to look no further than the plaintiff in the case, Shelby County, Alabama.

onsters Exist Everywhere, They're Just Not in Charge Everywhere

Four members of the United States Supreme Court have shown again, in the court's decisions of recent days, that they represent the very worst of America when it comes to race or gender, just as they have shucked the Constitution in support of money and partisanship in the democratic process.

The four are Chief Justice John Roberts together with Associate Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. They are the Hateful Four in so many senses – for the hateful views they express, for the hateful practices they support, for the hateful spirit they bring to a country in need of wisdom and healing.

Or is there some significant part of the national life that their decisions have improved?

The Hateful Four reached critical mass in 2006 when Alito assumed the bench, following Roberts in 2005, Thomas in 1991, and Scalia in 1986. One third of our Supreme Court was appointed by one family named Bush, and it's possible that Vice President Bush had influence on President Reagan's choice of Scalia.

Bush v. Gore Set the Table for the Hateful Four

Only two of the Hateful Four (Scalia and Thomas) participated in Bush v. Gore (2000), which appointed the president who appointed the other two. That decision was issued per curiam, to create the legal fiction that the decision was made unanimously, "by the court." As a result, there is no signed majority opinion, although there is one signed concurrence (by Scalia, Thomas, and then-Chief Justice William Rehnquist). There are also four different dissents signed variously by five other justices.

Only Justice Anthony Kennedy put his name on nothing in this case, thereby staking his claim to a startling absence of courage in the face of a decision that would open the country to mindless wars and recklessly unregulated economic behavior, all of which continues to do us harm. In this light, Bush v. Gore is more aptly characterized as a quia volo decision, which means, translated literally, "Because we want to."

In Citizens United v. Federal Election Commission, the Hateful Four voted as a bloc to shift America's already degraded market politics closer to monopoly politics, using a tortured version of the First Amendment to decide that non-persons had the right to buy as much free speech as they wanted. As Kennedy, the opinion's author, put it: "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

"Supreme Court overrules God" – Tweet by Todd Starnes, Fox News

On June 26, the Hateful Four held together but failed to prevail in their homophobic support for the Defense of Marriage Act in United States v. Windsor. Abandoning the Hateful Four this time, Kennedy wrote the majority opinion that upheld a lower court's ruling that federal tax law treated a lesbian couple with blatant unfairness when compared to the way it treated mixed-gender couples.

"The federal statute is invalid," Kennedy wrote, "for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment," which provides, among other things, for "the equal liberty of persons" under law.

The Defense of Marriage Act was no less offensive to the Constitution in 1996, when a frightened bi-partisan Congress passed it (342-67 in the House, 85-14 in the Senate) and a querulous President Clinton signed it into law in September of that presidential election year.

Scalia Has No Problem with Intentional Discrimination Here

To express his displeasure with this 5-4 decision, Scalia read his dissent aloud. It was not a surprise, coming from the justice who wrote in an earlier dissent in Lawrence v. Texas (2003), in which the court overturned Texas law criminalizing sodomy:

"Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct..."

Scalia's sexual prejudice was not at the heart of U.S. v Windsor, in which the issue was the catch-22 that allowed the government to pick the pocket of the estate of a member of a long-standing relationship simply because the women were not married, which was illegal under other laws. Their behavior was not an issue, nor was it in evidence, since the state's injustice would have prevailed had the ladies lived together as chastely as nuns.

Because People Have a Right to Vote Doesn't Mean We Should Encourage It

On June 25, Roberts led the Hateful Four plus Kennedy to a victory over the Voting Rights Act of 1965. Writing for the majority at the height of his personal hypocrisy, Roberts concludes the decision: "Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions."

One thing that makes his argument hypocritical is that Roberts, 58, has actively opposed the Voting Rights Act for more than 30 years, at least since 1981 when he was in the Reagan Justice Dept. He wasn't concerned with "current conditions" then – his concern was that violations "should not be too easy to prove" and to achieve that, Roberts helped the Reagan administration push for elimination of voter discrimination only when it could be proved to be intentional. The unspoken immorality of that position is that unintentional discrimination becomes fine and dandy, a position long enjoyed wherever discrimination has been practiced.

The Right of Citizens of the United States to Vote Shall Not Be Denied

The constitutional basis of the Voting Rights Act is the 15th Amendment (1870) to the Constitution (1791). The amendment in its entirety:

Section 1. 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.[1]

As Roberts knows perfectly well, the intent of the amendment is to eliminate discrimination, without regard to whether that discrimination is intentional, unintentional, or striped like a zebra. But that's not what he wants (quia volo).

At the beginning of his final paragraph, Roberts is not only hypocritical, but exquisitely deceitful and cynical when he writes:

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [section] 2. We issue no holding on [section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an "extraordinary departure from the traditional course of relations between the States and the Federal Government."

The first sentence is almost surely a deliberate lie. The decision affects the constitutional ban on voting rights discrimination by making the Voting Rights Act unenforceable until Congress acts.

Hypocrisy Exposed As Too Timid Can Cover Ruthless Cynicism

To say there's "no holding" on section 5 of the Voting Rights Act is baldly disingenuous and hypocritical, since Roberts well knows that section 5 becomes inoperable without Section 2. Thomas says as much in his concurrence, which ends with this mild dissent:

While the Court claims to "issue no holding on [section] 5 itself …" its own opinion compellingly demonstrates that Congress has failed to justify "current burdens" with a record demonstrating "current needs." […] By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court's opinion, I would find [section] 5 unconstitutional." [emphasis added]

Purposefully or not, Thomas's disparagement of the hypocritical cover story gives some cover to the chief justice's deep underlying cynicism. Of course it is constitutionally correct for the court to nod to the ultimate authority of Congress (even as the court eviscerates that authority), but to make that nod to this Congress is less deference than mockery.

The Voting Rights Acts Works, That's Why We Don't Need It

In 2006, that Congress voted overwhelmingly (390-33 in the House, 98-0 in the Senate) to renew the Voting Rights Act for 25 years. An amendment to shorten the renewal to 10 years lost 288-143 in the House. President Bush spoke with solemn pride of the act when he signed it, calling the bill "an example of our continued commitment to a united America where every person is valued and treated with dignity and respect."

Now the Supreme Court has vitiated the act in a craven decision, leaving it to Congress to fix before the next election. Is there anyone who believes the current Congress will act to repair the Voting Rights Act? Will it even bring a bill to a vote?

No wonder Howard Fineman calls Roberts, with more respect than Roberts has earned, "The shrewdest, most manipulative and radical politician in this city…."

The court's Voting Rights Act decision looks for all the world like intentional racial discrimination. So does the court's decision on affirmative action. But intent is hard to prove. Just as Roberts explained in 1981.

William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.