Goldstone’s most recent book is “Because of Race: The Supreme Court, White Supremacy, and the Ravaging of African-American Voting Rights.”
The Roberts court’s record of protecting voting rights is hardly impressive. Rather than viewing ballot box access as fundamental to a healthy democracy, the Supreme Court’s conservative majority prefers to argue that blatant attempts to deny the poorest nonwhite Americans the vote are “political” activities and therefore beyond the scope of voting. beyond what Alexander Hamilton assured. The Americans would be the popular branch of government.
Whether in Shelby County v. Holder, where Chief Justice John Roberts blithely gutted the Voting Rights Act of 1965, or more recently, when a 5-4 majority (which ironically did not include Roberts) refused to overturn a plan Alabama redistricting law that minimized the influence of black voters, the court sided with an aggressive conservative base that aims to keep control of government by limiting the rights of groups that vote against them.
So it came as a bit of a surprise when the court refused, at least for now, to grant emergency motions from Republicans in Pennsylvania and North Carolina to reinstate the gerrymandered redistricting maps that had been denied by the courts. supreme in their state. The Pennsylvania petition was dismissed because the case was already being heard in federal court, but no such technicalities existed in the North Carolina case.
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Although the majority did not issue a written opinion, Samuel Alito wrote a dissent joined by Neil Gorsuch and Clarence Thomas. Brett Kavanaugh agreed with Alito’s reasoning but voted with the majority because he believed primary elections in both states were too close to implement a new constituency map.
Republicans in North Carolina made a new and unprecedented argument, which Alito and his comrades accepted: because Article 1, Section 4 of the United States Constitution specifically states: “The times, places and the Manner to hold elections for Senators and Representatives, shall be prescribed in each State by its legislature(Italics from Alito), state supreme courts had no authority to alter a redistricting plan approved by a state legislature.
“The petitioners will suffer irreparable harm if a stay is not granted because they will be deprived of their constitutional prerogative to draw the map of Congress in their state,” he concluded. But Alito was forced to admit that the North Carolina court did not arbitrarily nullify the General Assembly; on the contrary, he “justified his actions on the grounds that the General Assembly cards constituted partisan gerrymanders and therefore violated a set of state constitutional provisions.” (My italics.).
In other words, the North Carolina Supreme Court ruled that because its legislature violated the state Constitution by drawing up a discriminatory redistricting map, it had the power to declare it void, a power commonly referred to as ” judicial review”. But Alito and his brothers countered that because that specific power is not granted to state supreme courts in Article I, Section 4, even the most egregious gerrymander should be allowed to run. (One has to wonder if the dissenting justices would have been so cavalier had it been the Republicans who had been gerrymander rather than the Democrats.)
What Alito seems to have forgotten is that another court has assumed the power to act as a constitutional check on the legislature although this power is not granted to it by the Constitution.
The power of the Supreme Court to overrule Congress and strike down a law or vary its operation does not appear anywhere in Article III or anywhere else in the Constitution. As the late Justice Antonin Scalia observed, “The Constitution of the United States nowhere says that the Supreme Court will have the final say on what the Constitution means, or that the Supreme Court will have the power to disregard account of the laws enacted by the United States Congress. United States on the ground that, in the opinion of the Court, the laws do not conform to the Constitution. It is not stated anywhere in the Constitution. We invented it.
Invented indeed. At no time during the Constitutional Convention did the delegates come out in favor of the Supreme Court striking down a law passed by Congress and signed by the President. They briefly discussed a “review board” in which Supreme Court justices and the president would approve or reject bills passed by Congress, but that notion was dismissed out of hand. In fact, the two most respected legal theorists of the time, William Blackstone and Baron de Montesquieu, who had both been widely read by the delegates, each advised that the judiciary should never be able to override the legislative power. . Judicial review was not introduced into American jurisprudence until 1803, when Chief Justice John Marshall in Marbury v. Madison wrote, “It is categorically the duty of the judicial department to say what the law is.
But for Scalia, who often bragged about his “textualist” philosophy, Marshall’s convenient ending circumventing the confines of the legal system was entirely appropriate. “Now we have come up with it very wisely,” Scalia added, “because we felt that a Constitution is a law, a kind of super-law…and figuring out what law means is the job of the courts.”
Judicial review is now the most powerful weapon in the arsenal of the courts and no judge would dare to suggest that it was improperly acquired. Nonetheless, Alito and his fellow dissenters would deny states the very power he and his fellow conservatives wielded to such advantage in cases such as Shelby County and Citizens United.
Lest Alito’s dissent be a minority opinion, Kavanaugh is eager to revisit this issue in a future case and Amy Coney Barrett could hardly be considered a reliable suffrage and racial justice advocate. It is not unlikely that when Justices Kavanaugh and Barrett, who both seem anxious at the moment to demonstrate that their appointments were not illegitimate, will become more comfortable about the high bench, their reasonable appearance and their openness from other points of view evaporate.
If that happens, the United States will take another step back from the free and fair elections and democracy it claims to be.
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