The ‘stench’ of Roberts’ court began when she undermined the voting rights law and US democratic diplomacy


Supreme Court judge Sonia sotomayorSonia Sotomayor Perils of Plan B: White House pressure to “codify Roe” goes far beyond the status quo. wondered during December 1 pleadings on Mississippi’s anti-abortion legislation whether the Supreme Court as an institution could survive the “stench” of overturning 50 years of precedent in its Roe vs. Wade decision. Sotomayor is right to be concerned about the public perception of court rulings, but the court stench Roberts became noticeable with his 2013 ruling in Shelby County v. Holder, in which Chief Justice John Roberts wrote the majority opinion.

Shelby County, which is in Alabama, has sought to repeal Section 5 of the Voting Rights Act (VRA), originally enacted in 1965 and which Congress extended for 25 years in 2006.

Section 5 required nine states, mostly southern (including Alabama) and parts of seven other states in various sections of the country, to notify the US Department of Justice (DOJ) of any proposed changes in requirements or requirements. voting practices. The preclearance requirement stemmed from the history of discrimination of voters in those states and jurisdictions, and it required them to demonstrate that the changes they proposed did not have a racially discriminatory intent or effect. From 1970 to 2000, the DOJ, under section 5, opposed nearly 1,000 changes proposed by the jurisdictions covered. The DOJ blocked 31 proposed changes in 2006, when the VRA was extended.

The 2006 extension of the VRA was remarkably bipartisan: after 21 hearings, which produced 15,000 pages of evidence, the House approved the VRA by a vote of 390-22 and the Senate by 98-0. Congress, following a careful public review of the practices of the jurisdictions most affected by the VRA and hearing arguments from all parties, has decided to keep all parts of the VRA operational, including the requirement to a preclearance. In short, Congress found that while some progress has been made, there had not been enough changes since 1965 to warrant a substantial modification or non-renewal of the VRA.

Roberts and four other judges disagreed.

Writing for the majority, Roberts has repeatedly asserted that “things have changed dramatically” since the VRA took effect. Roberts went on to say that the change in circumstances, which Congress specifically had not found, meant the time had come to end a remedy that was straining the normal constitutional order. In his dissent, Justice Ruth bader ginsburgRuth Bader Ginsburg Perils of Plan B: White House Pressure to ‘Codify Roe’ Goes Way Beyond the Status Quo The Ruth Bader Ginsburg Women of Leadership Award to Queen Elizabeth What You Feel at Court supreme? FOLLOWING characterized the majority view of ending preclearance as being like “throwing an umbrella in the middle of a rainstorm because you don’t get wet”.

Events would prove Ginsburg right and Roberts wrong.

On the day Shelby County’s ruling was released, Texas announced it would implement a strict voter photo ID requirement that the DOJ had previously blocked. North Carolina quickly followed suit, adopting a photo ID requirement as well as reducing the voter registration window and reducing early voting. Alabama and Mississippi also moved after Shelby’s decision to adopt their own voting restrictions. Such behavior continued until the 2020 elections.

The Roberts court’s gutting of Article 5 meant that states and courts could adopt and implement voting restrictions until prosecuted and a court ceases them, which could take multiple election cycles. Such lawsuits have taken place – and have sometimes been successful – but they were expensive and time consuming.

As if to cement the VRA sterilization process, the Roberts court at the end of its 2020 term made it more difficult to challenge the post facto voting restrictions. Its decision in Brnovich v. Democratic National Committee said Article 2 of the VRA, which prohibited racial discrimination at the national level in voting, only applied to intentional discrimination, and not to acts that had the effect of disadvantaging racial groups. , a standard that will be difficult to meet, the intentions being much more difficult to prove than the effects.

The “stench” of the Roberts court comes from rulings that have eroded the principle upon which our constitutional republic was founded, that the people are the ultimate sovereign in America, and they exercise that sovereignty by voting, initially by voting to ratify the Constitution. Shelby and Brnovich as well as Citizens United v. FEC (2010), which overturned long-standing restrictions on campaign funding, are examples of such court rulings by Roberts.

The Founding Fathers clearly did not mean that the Constitution authorizes efforts to produce desired electoral results by restricting access to the ballot or to those who have the financial resources to dominate the electoral space, but it is there. that the Roberts court placed us.

What the Roberts court did by undermining voting rights is primarily a national concern, but it also has diplomatic significance.

Our constitutional order is the foundation of America’s domestic tranquility and prosperity, which is the foundation of our strength abroad.

Moreover, an intangible source of American power lies in the hitherto widespread respect and admiration of our democratic institutions and practices, particularly free and fair elections.

A sitting president’s efforts to overturn the 2020 election and subsequent actions by Republican-led states to restrict future voting, which the Roberts court rulings make easier to do and harder to challenge, have had for overseas effect of making the American system of governance seem less special – and they undermine decades of American diplomacy to promote democracy.

Democracy matters, which is why the Republican and Democratic administrations have pursued it and why President BidenJoe BidenJosé Andrés to travel to Kentucky following devastating Sunday tornadoes preview: officials and experts respond to omicron; Biden administration sounds the alarm on Russia, China Biden says he will travel to storm-affected area: “We will overcome this together” MORE hosted a summit on virtual democracy last week. But the erosion of the fundamentals of American popular sovereignty is hurting America in its global competition with the China of Xi Jinping and Vladimir PoutineVladimir Vladimirovich PutinFrom the Cold War to a hard freeze Vindman: US has been ‘fickle’ in friendship with Ukraine New policy gives some federal agencies 24 hours to assess major cyber attacks: MORE report‘s Russia and to deal with autocratic drift in parts of Europe and elsewhere. It is even more important at home.

The “bigger generation”, which is now disappearing, had to fight abroad during World War II to protect this constitutional order; now today’s generations must fight at home – through local, state and national elections – to protect our constitutional order and safeguard the rights vested in when Americans ratified the Constitution in 1788 and established the world’s first constitutional republic .

Kenneth C. Brill is a retired career foreign service officer who served as ambassador to the Clinton and Bush administrations and was the founding director of the United States National Proliferation Center in the office of the director of the national intelligence..


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