Thursday, June 25, 2009

Clarence Thomas thinks Voting Rights Act is Unconstitutional.

Justice Clarence Thomas, alone among the 9 Supreme Court justices, said he would have held Section 5 of The Voting Rights Act is unconstitutional.

Anyone who believes that only "liberal" judges are "activists" should read Justice Clarence Thomas’ dissent in the 23 June Supreme Court ruling on the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 v. Holder.

If an activist is a judge who wants to use the power of the courts to substitute his preference for the will of the people’s elected representatives, then Thomas fits the definition.

Legal scholars have known this about Thomas for some time. But still he gets held up as a stellar example of a "conservative" by those who spit "activist" as an epithet synonymous with "liberal."

There are times when justices can and should tell the legislative branches they’re wrong or they’re not doing their job. Sometimes, whether "activism" is acceptable depends on whether you like the outcome.

In the voting rights case, Thomas was the only one of the nine justices who wanted to throw out Section 5 of the 1965 Voting Right Act as an unconstitutional intrusion on states’ rights.

It’s not that other members of the court weren’t grinding their teeth over the provision. But none of them but Thomas were prepared to substitute their judgment for Congress’ at this point. In fact, Chief Justice John Roberts wrote the court’s opinion that decided the case on narrow grounds, basically avoiding for now a decision on Section 5’s constitutionality.

Some analysts are saying that Roberts essentially rewrote the law to achieve that result, an activist act in itself. Even under that interpretation, though, he backed away from a heavy-handed judicial pronouncement on a key civil-rights law most recently reauthorized in 2006.

The 15th Amendment, which guarantees the right to vote free from impediments based on race, color or "previous condition of servitude," directly empowers Congress to enforce it through "appropriate legislation."

Of course, like many constitutional provisions, defining what’s appropriate is left up to Congress and the courts.

Section 5 has been controversial from its inception because it requires only certain states, mainly from the old South, to get Justice Department clearance for any revisions in election procedures. Redraw congressional districts? Pre-clearance required. Switch from at-large voting to single-member districts? Pre-clearance required. Change school board district boundaries? Pre-clearance required.

Texas is one of the states that must go through pre-clearance. And the Northwest Austin MUD, which never has been accused of racially discriminating against voters, argued that if it couldn’t get exempted from the requirement the law must be unconstitutional.

Even those who want to do away with Section 5 acknowledge that in the 1960s it was an effective way to enforce equal rights against states that eluded their obligations by adopting onerous tests and arbitrary restrictions that prevented blacks from voting.

"Enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for Blacks in the Jim Crow South," Thomas wrote. "Despite the Civil War’s bloody purchase of the 15th Amendment, the reality remained far from the promise."

But the world has changed, he said, and the law should reflect that.

In his 19-page dissent, Thomas pointed out that in seven states covered by Section 5, Black voter registration exceeds the national average. He noted that in Texas Black registration and turnout in the 2004 election was higher than for whites.

For Thomas, that was evidence the law no longer meets the threshold for being a constitutional exercise of congressional power over the states.

But his argument could just as easily have been one made on the House or Senate floor for why Section 5 should be dropped. But Congress reauthorized it. And that makes Thomas sound as though he simply wants to override a choice he doesn’t like.

More than 40 years after the Voting Rights Act was enacted, "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," he said.

And he doesn’t believe that states should continue to be burdened based on "second-generation barriers," racial polarization or "discrete and isolated incidents of interference with the right to vote." His bottom line: Extreme circumstances justify extreme remedies, but anything else falls short.

Reasonable people can argue that subtle behavior continues that unfairly suppresses minority voting. Likewise, reasonable people can argue that it’s unfair to keep putting jurisdictions through the delay and expense of pre-clearance when they’ve largely cleaned up their act or never acted egregiously in the first place.

But it’s hard to argue that only "liberal" judges are "activists" who try to shape the law to their preference.

You can say what you want about Supreme Court Justice Clarence Thomas, and plenty has been said and little of it's flattering. But you can't say he's not a man of his word. Since that fateful day in 1991 when by the narrowest of the margins a deeply divided and even more deeply reluctant Senate confirmed him to the high court, Thomas vowed payback against those who ridiculed, reviled, and hounded him during the confirmation fight. He will never forget that humiliation.

He proved that again in yet another of his patented one man dissents against the court's majority ruling not to scrap a key section of the Voting Rights Act. Thomas went against his fellow hard line, strict constructionist, cut buddy Antonin Scalia in his dissent. He argued that he'd dump the Act since as he put it "The extensive pattern of discrimination that led the Court to previously uphold Section 5 . . . no longer exists. "

It does, and the other eight judges, Scalia included, obviously were bothered enough by the briefs from civil rights groups that implored the court to uphold the Act. They fully documented that more than a few districts in the South and the West have used rigged or malfunctioning voting machines, selective photo IDs, contrived language requirements, alleged ballot shortages, the absence of polling places and registrars, the selective use of felon laws, and intimidation tactics to chase as many blacks, Latinos and American Indians from the polls as possible. The Justice Department has filed dozens of complaints of voting irregularity and discrimination complaints in the past two decades.

Thomas's ridiculous lone wolf votes on race based court cases, of course, make no sense to most legal experts. But his decisions make sense because they have less to do with his warped interpretation of law and its practice than with his publicly expressed racial views, and his private vow to get revenge.

When asked how long he'd stay on the court, he reportedly said that he'd stay there for next 43 years of his life. He was 43 at the time. In a more revealing aside, he supposedly quipped to friends that it would take him that long to get even. Whether that is hyperbole or an apocryphal tale, it hasn't taken him 43 years to wreak his revenge.
He has been a one man wrecking crew to expunge race from law and public policy decisions. But this is not simply one man's personal bitterness over his alleged mistreatment by liberals and civil rights leaders. Or a case of his digging his heels in to push his retrograde view on racial matters. He wants more judges to think and act like him on the bench. And all the better if those strict racial constructionist judges happen to be minorities.

In his autobiography My Grandfather's Son, the bitter feelings that he holds against those who did so much to dump his confimration were on full display. He showed no sign of budging a step from the relentless public and private war he's waged against civil rights leaders and liberal Democrats. The "liberal mob" as he brands them has one goal, and only one goal, and that's to "keep the black man in his place." The black man of course is Thomas.

The other theme that courses through Thomas's clinical need for payback is his obsessive view of himself as the perennial martyr. In an American Enterprise Institute lecture in 2001, he wrapped himself in the martyr's garment and said that he expected to be treated badly for challenging liberal opinion.

Thomas's mean-spirited and vindictive views and legal opinions on the death penalty, age and gender bias, first amendment, prisoner rights and affirmative action cases were well known by the time he hit the court in 1991. It can hardly be said that Thomas latched on to judicial conservatism solely to curry favor with white conservatives to snatch a seat on the high court. He believes what he says and writes even when others don't and can't. But even if he didn't he'd still say and write the ridiculous things he does that masquerade as dissenting legal opinions. He's simply fulfilling his vow of payback.

A Supreme Court challenge to the Voting Rights Act, the government's chief weapon against racial discrimination at polling places since the 1960s, survived Monday 23 June in a ruling that nevertheless warned of serious constitutional questions posed by part of the law.

Major civil rights groups and other defenders of the landmark law breathed a sigh of relief when the court ruled narrowly in favor of a small Texas governing authority while sidestepping the larger constitutional issue.

After argument in late April, it appeared the court's conservatives could have a majority to strike down part of the law as unnecessary in an era marked by the election of the first African-American president.

But with only Clarence Thomas in dissent, the court avoided the major questions raised over the section of the voting law that requires all or parts of 16 states — mainly in the South and with a history of discrimination in voting — to get Justice Department approval before making changes in the way elections are conducted. This is puzzling and troubling. Of the nine Justices, Thomas was the lone dissenter. He is the only Black justice on the Court. He appears to go out of his way to adverse effect Blacks.

The court said that the Northwest Austin Municipal Utility District No. 1 in Austin, Texas, could apply to opt out of the advance approval requirement, reversing a lower federal court that ruled it could not. The district appears to meet the requirements to bail out, although the high court did not pass judgment Monday on that point.

Five months after Barack Obama became president, Chief Justice John Roberts said the justices decided not to determine whether dramatic civil rights gains means the advance approval requirement is no longer necessary. That larger issue, Roberts said, "is a difficult constitutional question we do not answer today."

Attorney General Eric Holder called the decision a victory for voting rights and said the court "ensured that this law will continue to protect free and fair access to the voting booth."

Debo Adegbile, the NAACP Legal Defense and Educational Fund lawyer who argued for the preservation of the law at the high court, said, "The fact is, the case was filed to tear the heart out of the preclearance provision of the Voting Rights Act and that effort failed today."

But critics of the law said the court made clear that it may not take such a restrained approach the next time a voting rights challenge comes it way.

"It leaves the courts wide open to another challenge. If someone files a new lawsuit, I think there's a very good chance that down the line they might find it unconstitutional," said Hans von Spakovsky, a legal scholar at the conservative-oriented Heritage Foundation.

Rep. Lynn Westmoreland, R-Ga., one of only 33 lawmakers who opposed renewal of the law in 2006, said, "I'm disappointed that the justices laid out the case for why the law is unconstitutional and then stopped short of tossing it. I do feel optimistic, however, that the court's dim view ... means the law will not survive for the full length of its 25-year renewal."

The court's avoidance of the constitutional question explains the consensus among justices in the case rendered Monday, where they otherwise likely would have split along conservative-liberal lines.

Justice Clarence Thomas, alone among his colleagues, said he would have resolved the case and held that the provision, known as Section 5, is unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas said.

Roberts himself noted that blacks and whites now register and turn out to vote in similar numbers and that "blatantly discriminatory evasions of federal decrees are rare."

He attributed a significant share of the progress to the law itself. "Past success alone, however, is not adequate justification to retain the preclearance requirement," Roberts said.

Still, the court did not decide that question in what Justice Ruth Bader Ginsburg recently described as "perhaps the most important case of the term."

The Voting Rights Act, first enacted in 1965, opened the polls to millions of black Americans. In 2006, the Republican-controlled Congress overwhelmingly renewed the part of the law which provided for the advance approval requirement for 25 years and President George W. Bush signed it.

The Austin utility district, backed by a conservative group opposed to the law, brought the court challenge. It said that either the district should be allowed to opt out or the entire provision should be declared unconstitutional.

Based on the tone of the questions when the case was argued in late April, many civil rights and election law experts predicted the Roberts-led court would indeed strike the measure down.

The court ruled instead on a provision of the law that allows a state or local government to seek to be free of the advance approval requirement.

The three-judge court in Washington, D.C., that originally decided the case said the utility district did not qualify as a local government that is eligible to bail out. The high court reversed that ruling Monday, saying "all political subdivisions" are eligible to file a bailout suit.

The Austin utility district is in the heart of Canyon Creek, an affluent suburb of about 3,500 residents that didn't break ground on its first house until the 1980s. About 80 percent of residents in Canyon Creek are white, according to the 2000 census.

As recently as 2002, voters in Canyon Creek used a neighbor's garage to cast their ballot in their utility board elections. The board wanted to change the polling location to a school, but first had to seek federal clearance.

The community got it, but Canyon Creek's board felt that needing approval from Washington was an unnecessary obstacle in a tiny neighborhood with no history of minority voter discrimination.


ichbinalj said...

Justice Clarence Thomas, alone among his colleagues, said he would have resolved the case and held that the provision, known as Section 5, is unconstitutional. "The violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains," Thomas said.
I knew Thurgood Marshall. You sir are no Thurgood Marshall.

ichbinalj said...

For what it's worth, I sometimes wonder what would have happened to Thomas without the Anita Hill scandal. He surely would have been approved by the Senate by a wider margin, but more importantly, would there have been an effort to enlist him in electoral politics? It seems far fetched now, given what a recluse Thomas has become.