Today’s Edition: The Supreme Court is broken

July 2, 2021

.          The Supreme Court is broken. In a shameful decision on Thursday, the Court validated efforts by state legislatures to disenfranchise Black and Latino voters in states that were crucial to Biden’s victory. It did so by completing the evisceration of the Voting Rights Act that Chief Justice Roberts started in 2013 in Shelby County v. Holder. In Thursday’s decision in Brnovich v. Arizona, the Court divided neatly along partisan lines: The majority was composed of six justices appointed by Republican presidents, while the minority was composed of three justices appointed by Democratic presidents. The decision confirms that the Court has been reduced to a surrogate for the Republican agenda, and that it is time to stop pretending otherwise. “Preserving the legitimacy of the Court” is no longer a valid objection to reforms necessary to break the death grip of the reactionary majority on the third branch of government.

          Before discussing the opinion in Brnovich in detail, let’s take stock of where we are and what we can do to advance our cause. There is almost nothing left of the Voting Rights Act. State legislatures are free to erect “neutral” obstacles to voting that disproportionately disadvantage racial minorities. The recent suit filed by the Department of Justice against Georgia is likely doomed, as will be suits against South Carolina, Texas, and a dozen other states controlled by Republicans that have passed voter suppression legislation to fight non-existent fraud. So-called “moderate” Democrats in the Senate will defend the filibuster over the voting rights of tens of millions of Americans, thereby preventing passage of the For the People Act and resurrection of the Voting Rights Act. In short, things are bad.

          So, is our fight over? Have we lost? Are we helpless? Absolutely not! At the end of the day, Democrats can register to vote and show up at the polls on election day in large numbers to overcome voter suppression efforts of Republican legislatures. No matter how many obstacles Republicans erect, they can be surmounted with sufficient effort and dedication. Will it be difficult to overcome those obstacles? In some states, yes. But we should not assume that efforts to suppress voting will affect Democrats alone. Indeed, in some states—like Arizona and Florida—mail ballots have long served as the GOP’s secret weapon for winning elections. See NPR (4/11/20), Despite Trump Criticism, Republicans Also Rely On Vote By Mail.” (“For more than 40 years, Stipanovich helped Republicans win campaigns and come to dominate Florida politics. “Absentee ballots,” he said, “are typically Republicans' friends in Florida.”)

          Although the opinion in Brnovich v. Arizona is both deeply troubling and disappointing, it does not spell doom for Democrats—unless Democrats decide to accept defeat. We control our destiny. It is understandable to be angry, anxious, and even momentarily depressed that the Supreme Court has turned its back on the fundamental right on which all other rights are predicated. But Brnovich should also fill us with a new sense of urgency and resolve about eliminating the filibuster, enacting federal protection for voting rights, reforming the Supreme Court, and defending our majorities in Congress. At this point, our most dangerous foes are apathy and defeatism. Don’t give in to those urges. Instead, be part of the solution by modeling behavior to others that will inspire and motivate them. It’s on us. Let’s get to work.

The ruling in Brnovich v. Arizona.

In a 6-3 opinion, the Court upheld Arizona legislation that disproportionately affected minority voters by prohibiting collection of mail ballots for delivery to polling booths—a strategy used by minority communities to overcome long lines in hot weather. The Supreme Court said that disproportionately affecting “minority groups” is acceptable, as long as the legislation is facially neutral. Such reasoning has a long and ugly history. In Brnovich v. Arizona, Justice Alito wrote for the majority:

           To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and non-compliance with voting rules. But the mere fact there is some disparity in impact does not necessarily mean that a system is not equally open or that it does not give everyone an equal opportunity to vote.

          In short, “neutral regulations” are acceptable to the Roberts’ Court even if they result in “predictable disparities in rates of voting” among “minority groups.” That is exactly the strategy adopted by Southern states that sought to circumvent the Fifteenth Amendment’s grant of voting rights to former slaves. For example, most enslaved Americans were unable to read when emancipated. To deny former slaves the right to vote, Oklahoma enacted a racially neutral literacy test as a precondition to voting. But all voters who were eligible to vote prior to 1864—that is, prior to emancipation of slaves—were exempted from the literacy test, as were their lineal descendants. Oklahoma’s statute was a “neutral regulation” that resulted in a “predictable disparity” in voting rates among former slaves. The Supreme Court struck down Oklahoma’s literacy test in Guinn v. United States, 238 U.S. 347 (1915).

          In neutering the Voting Rights Act, the Roberts Court put on blinders to the long history of racially neutral laws intended to deny Black Americans the right to vote.  That alone makes the opinion reprehensible. But Justice Alito added a gratuitous passage that echoes the Big Lie. Justice Alito wrote a passage that addressed Arizona’s alleged “state interest” in enacting the legislation that restricted activities used by minority communities to deliver absentee ballots to polling stations. Although there is no evidence that Arizona’s 2020 election was marred by fraud, Alito took the opportunity to write:

          One strong and entirely legitimate state interest is the prevention of fraud. Fraud can affect the outcome of a close election, and fraudulent votes dilute the right of citizens to cast ballots that carry appropriate weight. Fraud can also undermine public confidence in the fairness of elections and the perceived legitimacy of the announced outcome.

          Alito (and the reactionary majority) declared that “prevention of fraud” is a “strong and entirely legitimate” factor justifying legislation that results in “predictable disparities” in “minority group . . . voting rates.” Such reasoning is offensive, specious, and racist—especially because of the absence of fraud in 2020 and the relentless promotion of the Big Lie by Trump. Alito’s argument essentially says, “It’s okay to suppress voting rights of minorities because their votes are suspect.” Alito did not write those words, but it is the unavoidable meaning of his opinion.

          Despite my harsh criticisms of the ruling in Brnovich, other commentators have found a silver lining. See Ian Millhiser in Vox, “The Supreme Court’s Arizona decision leaves the Voting Rights Act alive — but only barely.” The always-enlightening Millhiser writes,

          Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states. . . [T]he opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.

          Though Millhiser is right about the extent of the holding in Brnovich, the ruling is an inauspicious portent for other cases challenging voter suppression legislation. And it is a clarion call to the proponents of Jim Crow 2.0 to continue their work of suppressing the votes of Black Americans.  Like Shelby County v. Holder, the ruling in Brnovich will forever stain the legacy of John Roberts.

Quick comments on indictment of Trump Organization and Kevin McCarthy’s depravity.

The indictment against the Trump Organization and Allen Weisselberg is no mere trifle. Others at the Trump Organization are exposed and the indictment hints that someone in a senior position is cooperating with the District Attorney. See generally, NYTimes, “Trump Was Not Indicted. But the Charges Still Threaten Him.” (“The criminal case against the former president’s business could deliver a blow to his finances, and he remains the focus of a broader investigation in New York.”) The bravado of the Trump Organization lawyers who denigrated the suit as one involving “fringe benefits” is looking like a mistake. They dared the D.A. to file more serious charges. They may get their wish. See Talking Points Memo, “Trump Org Indictment Could Very Well Signal More Charges To Come.”

          Speaker Pelosi appointed Liz Cheney to the Select Committee investigating the January 6th Insurrection. Minority Leader Kevin McCarthy threatened to strip committee assignments from any Republican who accepts an appointment to the Select Committee. See CNN, “McCarthy threatens to strip GOP members of committee assignments if they accept an offer from Pelosi to serve on 1/6 commission.” McCarthy is depraved. After the GOP’s negotiators in the House worked out a deal for a bipartisan commission to investigate the January 6th Insurrection, he lobbied the GOP caucus to oppose the bill. He succeeded in killing the commission. Now that Pelosi has appointed a select committee, McCarthy is threatening Republicans who join the committee. What is Kevin McCarthy afraid of?

Concluding Thoughts.

As we approach Independence Day, it is helpful to remember that the signers of the Declaration of Independence on July 4, 1776, did so believing that failure meant imprisonment, execution, or worse. We are in their debt and follow in their footsteps. We should honor the revolutionaries of 1776 by emulating their courage by being fearless participants in democracy. Their revolution continues today, with the outcome of their brave endeavor still uncertain. It is always so, and each generation must redeem liberty for itself. We will not be the generation to falter. Remember that as you celebrate Independence Day on Sunday.

          The next edition of the newsletter will be published on the evening of Monday, July 5th, 2021. My Managing Editor and I will take advantage of the long weekend to decompress and re-center ourselves. Please be careful over the holiday weekend, especially with barbeques, campfires, and open flames of any type. Be safe and enjoy the weekend!

          Talk to you on Monday evening!