Analysis: Chief Justice John Roberts created the legal landscape that doomed the suffrage bill, author says

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People cite a familiar cast of villains when talking about the decline of democracy in America.

Some point to GOP lawmakers crafting voter suppression bills. Others blame those who spread the “big lie” that the 2020 presidential election was stolen. Some even point to the two Democratic senators who condemned the voting rights legislation this week for not changing the filibuster.

But there’s someone most people rarely mention when talking about impediments to voting or the decline of democracy, says legal analyst Elie Mystal: Chief Justice John Roberts.

Mystal, one of the nation’s most sought-after legal analysts and author of the forthcoming book, “Allow Me to Retort: ​​A Black Guy’s Guide to the Constitution,” spoke with CNN for a recent Q&A- answers about race, voting rights and the decline of democracy in the United States.

Mystal says people can’t talk about these issues without talking about Roberts’ pivotal role in removing federal election oversight to allow unfettered voter suppression to normalize. Roberts’ majority opinion in Shelby v. Holder’s 2013 campaign was a pivotal step in his decades-long campaign to roll back racial progress, Mystal says.

The Voting Rights Act of 1965 was passed to prevent local and state governments from passing laws that denied citizens the equal right to vote based on their race. The Shelby decision gutted the law by allowing states with a history of racial discrimination to change their election practices without obtaining federal approval.

“His [Roberts’] public opinion has deliberately opened the door to all sorts of restrictions on voting rights,” writes Mystal. “When you see lines of black people waiting for hours and hours to vote, you can thank John Roberts profusely for these scenes of racism. And he wasn’t blamed enough for it.

A spokesperson for Roberts did not respond to a CNN request for comment on Mystal’s remarks.

Such candid talk from Mystal is characteristic of his new book, which is a lively, pugnacious and accessible look at the legal theories that shape everything from voting to gun rights.

Mystal says he wrote it to show Americans “what rights we have” and “what rights Republicans are trying to take away from us.”

Here are excerpts from our interview with Mystal. His answers have been edited for brevity and clarity.

President Joe Biden delivers a speech on voting rights at Clark University in Atlanta on Tuesday, Jan. 11, 2021. (Photo: Bria Suggs/The Atlanta Voice)

What will be the fallout now that Democrats have failed to pass a voting rights bill?

The Republican Party has no agenda. No way to please black voters and minority voters across the country. Their only strategy is to suppress the minority vote. Now that the Democrats have failed to pass voting rights legislation, what they have effectively done is rubber-stamp the Republican strategy of suppressing the minority vote.

Republicans never leave their base in the cold. Republicans always give their base red meat, something to get excited about every election. While Democrats never give their base, which happens to be black and brown voters, anything to get pumped up and excited about during their years in government. And then two or three months right before the election, they’re like, “Oh yeah, by the way, you have to come vote and save the party.”

Black people can’t save the country if the Democrats won’t let us. If you don’t put laws in place to protect our right to vote, then the 14 or 15 percent of us can’t save America from its right-wing white theocracy.

What does this mean for the country, and for democracy itself, now that the Suffrage Bill has been defeated?

It’s hard for me not to think about it holistically, because not allowing black people to participate in politics is as American as apple pie. This country was founded on an apartheid system of government. They waged a war against slavery – the losing side won the peace. And although they were not able to restore slavery, they were able to restore segregation and oppression and an apartheid government.

The 15th Amendment, which says you can’t discriminate against people who vote based on the color of their skin, meant nothing for 100 years because there was no law to back it up. Without a law, a constitutional amendment is more like a suggestion. He doesn’t have a power move. No law has been passed to implement the achievements of the Fifteenth Amendment.

That’s why I said the Voting Rights Act of 1965 is the most important law in American history. It is the first and only piece of legislation that makes the 15th Amendment real in this country. That’s why Republicans have been trying to take it down pretty much since its inception.

So when we say what’s the effect on the country now that the Democrats have failed to pass voting rights legislation – the country will just do what it has always done, which is say oppress the political voice and opportunity of African Americans and wider minorities in this country. We will backtrack.

In your new book, you say something that stuck with me: “The Constitution was designed to create a white male-dominated society. Not all founding fathers were slaveholders. What about men like John Adams and Benjamin Rush, who contributed to the birth of the Constitution? They were opposed to slavery. Isn’t what you said unfair to them?

No, because even for founders who were not slavers, they were willing to do business with slavers. One of the ways we know the John Adamses of the world knew slavery was wrong is that they refused to put the word “slavery” in their precious document. The word “slavery” is only mentioned indirectly in the original Constitution. The first and only time the word “slavery” appears in the Constitution is in the 13th Amendment, which prohibits it.

What do I get out of it? These white people knew what they were doing (by accepting the existence of slavery in the original draft Constitution) was wrong. And they didn’t stop him. Instead, they made deals with southern slavers to have a fucking country.

But what about the pragmatic side of this decision? The only way for the United States to have a nation and a Constitution was to enter into this agreement.

How pragmatic is it to say that the only way to have something we really want is to hold a whole people in bondage for hundreds of years? How is that a deal? They didn’t ask my people. They didn’t ask the women if they wanted to be part of the deal. I understand from a wealthy white person’s perspective, it was a fair deal. If you’re tired of being taxed by an overseas government, that makes sense.

I find this argument intellectually and morally weak. So don’t do the trick. Don’t break bread with slavers and slave owners for economic opportunity. I don’t think that’s how things should have happened. There were people in real time saying that slavery is wrong and should never be allowed.

I saw a recent interview in which you call Chief Justice John Roberts the “chief architect of the assault on democracyin this country. Sounds harsh for a fairly popular public figure. You may have heard of the recent Gallup poll, where he had the highest approval rating of any federal leader.

John Roberts was the enemy of voter equality throughout his professional career. In 1982 Congress changed the Voting Rights Act because while it was illegal to discriminate against people because of the color of their skin, in 1981 you had to prove that the state legislature had the intent to discriminate.

In 1982 they updated the law to mean you didn’t have to show intent. If your electoral law had a discriminatory impact, the fact that it was discriminatory was enough. [What Mystal is describing has long been a battleground in voting rights: Can a law violate the Voting Rights Act even if legislators never announce their “intent” by mentioning race?]

[President Ronald] Reagan said the Voting Rights Act humiliated the South. Reagan brought in a guy to figure out how to oppose the Voting Rights Act Amendment of 1982, and that guy is John Roberts. John Roberts made his legal debut arguing against the Voting Rights Act.

John Roberts has been the enemy of the black vote throughout his career. He showed it in 2013 [Shelby v. Holder ruling] when he eviscerated Section Five of the Voting Rights Act. It was the preclearance clause that Reagan thought was humiliating for the South. He was the architect of this assault on democracy.

Why is Roberts’ Shelby decision so offensive to you? In your book, you talked about Roberts’ decision, according to his majority opinion, that racism was over and that Section Five was no longer needed. [Author’s note: Roberts never claimed racism was over but wrote in the decision that “our country has changed” and that Congress must pass voting rights legislation that “speaks to current conditions.”]

It’s ridiculous to me that John Roberts, a white elite person, is the guy who knows when racism in the Deep South has diminished to the point where black people don’t need equal rights protection. He would be the last to know, based on his own experience and, quite frankly, the way the Supreme Court is supposed to work.

The Supreme Court would be the last institution to know. Congress is supposed to be the institution that knows. And Congress said we still need the Voting Rights Act. It was reaffirmed in 2006 by voice vote in the House, meaning it was so popular they didn’t bother to make a roll call, and in the Senate.

Congress said we needed the Voting Rights Act, but the Supreme Court stepped in and said, “Actually, no, we don’t,” because racism has been defeated in the South.

You talk in your book about how the Supreme Court at the end of the 19th century made a series of racist decisions that made the rise of Jim Crow possible. Do you think historians will ever look at Roberts Court decisions, such as the Shelby decision, and place them in the same league?

History is written by the victors, and right now his side is winning. But assuming his team ultimately loses, I think Roberts’ popularity will fade the further we get away from his decisions. The negative and racist impact of decisions will become more apparent. People will look at things like Shelby County and come to the conclusion that Roberts was an enemy of racial progress in this country.

He’s a friend and servant to white supremacy. People look at his personality and they say he can’t be that bad. This is because very few people have actually read his rulings and really understand his full story on these issues.

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