If Joe Biden is elected President next week, here comes the bad news. If Biden tries to defend Obamacare, combat climate change (via say, a variant of the Green New Deal) or tries to improve the access of US women to abortion services , he will run afoul of a Supreme Court dominated by judges likely to rule that such matters must be left to the states like Missouri and Alabama to manage as they see fit. Meaning: Even if Biden had a radical agenda, this would be unlikely to survive the current bench on the Supreme Court.
Yesterday’s confirmation of Amy Coney Barrett will create a lopsided 6-3 conservative majority on America’s most important Court. Barrett was nominated, as President Donald Trump has said, on the understanding that she will rule in his favour on any election-related challenges. Already the Supreme Court has ruled this morning’s ruling that votes in Wisconsin that arrive after polling day cannot be counted, even if they are postmarked as being put in the mail before Election Day.
In essence, the bloc of conservative extremists on the Supreme Court are choosing to back the “rights” of individual states to create their own rules for American democracy. On ideological grounds, they are choosing not to protect and prioritise the right to vote. By doing so, the current Supreme Court risks taking America back to the dark decades of the late 19th century, when some southern states ( in particular) would routinely disqualify blacks from voting. In their zeal to elevate states’ rights above all else, the conservative bloc on the Court is out to demolish any role for federal or court intervention – erected previously precisely because of that sad history of Jim Crow laws – intended to (a) ensure fairness and (b) treat the protecting of the ballot as an over-riding legal priority.
Among other things, this 6-3 majority will remove even the nominal restraint that has occasionally been exercised this year by Chief Justice John Roberts. Roberts shares the same goals, but he has been more aware of the harm that a perception of ideological extremism might do to the reputation of the Court. Well, Roberts can relax. Given how the Supreme Court (guided by the late Antonia Scalia) survived its blatantly political ruling that handed the 2000 election result to the Republican Party of George W. Bush, Barrett and her colleagues have every reason to think they can adopt whatever partisan stance they like in the service of Donald Trump, and get away with it.
Barrett used to work as a clerk for Scalia. In her confirmation proceedings, she absurdly refused to answer questions about whether she thinks voter intimidation is legal (there are laws against it!) or whether the right to abortion is well founded in law, or whether she thought the Court might have a role to play if Trump refused to vacate the office after an election loss.
The sins of originalism
Barrett calls herself an “originalist.” This is the approach to interpretation of the Constitution and legal precedent popularised by Scalia. Basically, it holds that a law means only what ordinary English speakers would have assumed the text to mean at the time it was ratified. It specifically rejects the notion that the text can/should be interpreted in the light of current understandings. That road, the originalists believe, is the road to hell where no constitutional truths can be held sacred. Really? As the New York Times recently indicated, originalism has some dodgy logical implications that no modern society would want to entertain:
Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868. But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that [the landmark 1954 Supreme Court ruling] Brown v. Board of Education [that ended segregation in US public schools] was wrongly decided…
In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as President or vice President, until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.
When it suits them however, the originalists don’t mind bending the rules. Some of the Constitution’s most sacred provisions on voting rights and against racial discrimination – contained the 13th, 14th and 15thAmendments ratified in the wake of the Civil War. Reading them now in the light of views on race and voting rights held by many Americans during the Reconstruction era of the late 1860s/early 1870s would enshrine racism, and not allow the Court to be a bulwark against it. Throughout the 20th century the nature of the US Constitution as a living document – rather than the one set in stone by the Founders’ principles – was illustrated by a series of further amendments, with the 27th Amendment being passed as recently as 1992.
It would therefore seem bizarre for the likes of Barrett to try and read as a coherent whole, a Constitution whose component parts supposedly must be read separately in the context of the views held at ratification during many contrasting periods of American history. Trying to do so would be to force feed the Court’s rulings back into the toothpaste tube of the Founders alleged “original” intents and principles.
Oh, and there’s another thing. The Ninth Amendment (ratified in 1791) reads as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This can (and has been) read as an open-ended concession by the Founders that they hadn’t covered all the bases, and that the list of rights enumerated by them was not exhaustive. The Ninth Amendment can be seen as a “catch all “provision on which various rights not specified by the Founders – e.g. to abortion, to freedom from racial, sexual and gender discrimination etc – are based. Understandably, originalists have problems with the Ninth Amendment, despite what looks like the clear intention of the Founders.
Balancing eggs on the constitutional spoon
Obviously, no-one would want to open the door to wilful interpretive acts of judicial activism, but quite simply, that isn’t the inevitable outcome of treating the Constitution as a living document. (The body of our own Treaty of Waitangi decisions proves as much.) After all, originalism itself has its own faddish aspects. For example: originalism assumes that a fractious group such as the Founders had only a single point of view and intention on legally ambiguous matters; and if they did, that this intent can be safely deduced nearly 250 years after the fact. Not to mention that there is no way of telling whether the Founders themselves would have agreed with Scalia that the “original intent” approach would be desirable, in perpetuity.
No doubt the US Constitution – partly inspired as it was by the revolutionaries in France – does set out some invaluable rules and boundaries as to the desired relationship between the federal government, the states and the citizenry. The Founders’ impulse to write these things down was reportedly a reaction against the unwritten British Constitution and the latitude for excess that this gave to the government of the day. So the Founders laid out a system of equally weighted checks and balances on the powers (at the national level) held by (a) the Presidency (b) the duly elected Senate and Congress and (c) the Supreme Court. The powers of the federal government were also to be balanced by the powers devolved to the states that constituted the young republic.
As mentioned above, the recent conservative majority on the Supreme Court has systematically set out to weaken and shrink the role of federal government and to give full rein to the states to do pretty much as they like about say, voting rights, racial and gender discrimination, business regulation and so on. In 2013, there was a scary preview of what this approach can mean in the real world. In the notorious Shelby County decision on voting rights, the Supreme Court gutted the 1965 Voting Rights Act which – until John Roberts got his hands on it – had been the single most important legislative achievement of the US civil rights movement.
But as the Atlantic Monthly has just pointed out in a brilliant analysis of what Barrett’s confirmation will mean for the Supreme Court, the Shelby decision allowed states ( eg Alabama) to revert to the voter discrimination practices against blacks that had prevailed in the last three decades of the 19th century. That’s because, in Roberts’ opinion, racial discrimination doesn’t exist anymore in today’s United States.
“Our country has changed,” Roberts announced in his 2013 opinion in Shelby County v. Holder, which rendered useless the provision allowing the federal government to pre-empt discriminatory voting changes in jurisdictions with a history of discrimination. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements,” Roberts wrote. In effect, the chief justice held that the real prejudice was not the disenfranchisement of black Americans—no longer at serious risk [!] —but the Voting Rights Act’s treatment of states with a history of disenfranchising black Americans.
States’ rights are right, OK?
Shelby was very revealing. As mentioned, states’ rights is the altar at which the originalists worship. When it comes down to the ability of US citizens to vote, states’ rights are seen by the Roberts Court to trump every other consideration, pun intended. Limiting the access to democracy by voters from poor communities and ethnic minorities (ie people likely to vote Democrat)has been a Republican project for years, and Trump’s judicial appointees continue to serve it. As the Atlantic article also pointed out:
On October 12, Trump appointees to the federal bench in Texas upheld Governor Greg Abbott’s decision to permit counties to designate only a single drop-off point for absentee ballots—a choice that will cause few problems in rural counties, where Republicans typically dominate, but has already created chaos in more populous counties, where Democrats are likely to draw a significant number of votes. In Harris County, which covers nearly 2,000 square miles, 5 million voters are now left with a single drop box. “One strains to see how it burdens voting at all,” the court concluded.
A few weeks ago, Werewolf pointed out that the Republican-dominated state legislature in Florida (won by Trump in 2016 by only 44,000 votes and which will be the most crucial swing state next week as well) had last year introduced a poll tax designed to once again disqualify the estimated 1.5 million former felons in Florida. These ( probably Democrat) new voters had seen their right to vote overwhelmingly re-established in 2018, after winning a whopping two thirds majority in a state-wide referendum. But the Republican state legislature and Trump appointees to the lower courts– in the interests of ensuring a Trump victory this year in Florida – have now torpedoed it. The Atlantic put it like this :
In September, Trump appointees upheld the Jim Crow logic of a Florida poll tax that disenfranchises the formerly incarcerated by forcing them to pay restitution before having their voting rights restored, even though the state has provided them with no means of finding out what they owe. This week, Governor Ron DeSantis ordered that they be purged from the rolls outright, which would complete the nullification of the 2018 referendum restoring voting rights to the formerly incarcerated, one that voters approved by an overwhelming margin.
Hey, originalists – poll taxes of this sort (or any other sort) were expressly outlawed under the 24th Amendment of the US Constitution (ratified in 1964, just before the Voting Rights Act was passed) and that amendment reads:
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
So far, the self-professed “originalists” have ignored the uncomfortable part of the Constitution. Just another example of the US higher courts putting themselves at the service of the Republican Party, during the Trump era. ( The 9th Circuit Court of Appeals covering the West Coast has been a notable exception but it too, is now being stacked with Trump appointees.)
Overall… This filling of the court system with ideological zealots in the service of the Republican Party will mean that even if Trump loses next Wednesday (NZ time) the corrosive effects will be felt for a generation or more. In fact, if the Democrats do win big on November 3rd, this alienation of the Supreme Court from the American public is likely to become even more pronounced. Especially if the Democrats win both the White House and a majority in the Senate. If so, the Supreme Court would then become the Republican Party’s last remaining tool for obstructing the legislative agenda of a Biden administration.
Debating the debates
I know, the presidential debates are done and dusted. Thank God. But for the record…which one did you prefer? Was it the shouty one where Trump exposed himself as the liar and bully he really is, or was it last week’s effort that made his lies sound more rational and more plausible? There was is no mistaking who liked the second debate a whole lot more: the mainstream media. According to them this was a real debate. Allegedly, Trump and Biden sounded more like they were putting forward their contesting points of view. It was, RNZ suggested, more ‘presidential.” Well, debates happen to be good for media ratings, and last week’s debate definitely did portray the product in a far more flattering light. That’s not the same thing though as saying that it left the voters with a truer impression of the candidates.
IMO the second debate was far worse. Unless you knew the backstory details, Trump’s fantasy world sounded (almost) rational. New York is a ghost town, Michigan is a prison colony, and entire American cities are being burned down by Antifa mobs being egged on by Democratic governors. Meanwhile he, Trump, has been doing more good for blacks than any President with the “possible exception” of Abraham Lincoln. A Covid-19 vaccine would be available in a couple of weeks, Biden and his family are a bunch of corrupt crooks exploiting his former office for personal gain. Things were going just great until the Chinese plague ruined it, but it will soon vanish etc. etc
Inexplicably, praise for keeping this uninterrupted stream of lies flowing smoothly was heaped on the moderator Kristen Welker as if she had been responsible for the relatively cordial tone Yet if he knows anything, Trump knows how to game the media.:
Over the past three years, the President has periodically remarked—sometimes with a self-aware chuckle or smirk—about how “easy” it is for him to trigger praise from a typically adversarial press simply by acting “nice” during a particularly weighty moment. “It’s so easy, can you believe it?” the President said during a dinner at the White House in early 2017, according to a source who was in the room at the time. “All I had to do was be a little nice… And do something beautiful [and now they’re] saying all these terrific things about Trump.”
Chances are, they’ll even say he looks more “presidential” aa he does it.