I’ve started reading Rachel Maddow’s new book, Prequel. Chapter 3 is about how the Third Reich looked to U.S. racial policies for guidance on singling out Jews for discrimination. The Reich actually sent lawyers to the U.S. to understand how we did it, considering our laws said all kinds of stuff about equal protection that obviously wan’t practiced. And, basically, the answer was that the white men who ran everything had many ingenious ways to rationalize that the equal protection clauses simply didn’t apply to nonwhites, because reasons.
So it was creepy when this happened yesterday.
A federal appeals court issued a ruling Monday that could gut the Voting Rights Act, saying only the federal government — not private citizens or civil rights groups — is allowed to sue under a key section of the landmark civil rights law. …
… The appellate court ruled that there is no “private right of action” for Section 2 of the law — which prohibits voting practices that discriminate on the basis of race.
That, in practice, would severely limit the scope of the protections of Section 2. On paper, those protections are themselves unchanged by the ruling. But for decades, private parties — including civil rights groups, individual voters and political parties — have brought Section 2 challenges on everything from redistricting to voter ID requirements.
The court’s reasons for this make absolutely no sense to me. But this is exactly the kind of thing courts used to do back in the 1930s to effectively nullify any legal language about equal protection and nondiscrimination. And yeah, the judge who wrote the decision was a Trump appointee.
Adam Serwer wrote at The Atlantic,
The Constitution is supposed to forbid such discrimination, but that sounds simpler than it is. In practice, if you have enough judges or justices willing to find unconstitutional the laws adopted to enforce that right, or willing to rule in such a way that nullifies the ability of those laws to function, you can simply render the Fifteenth Amendment useless. This is what the Supreme Court did after Reconstruction, when Black people were still trying to assert their right to vote and the justices decided it was a right they could not or would not defend.
And that judicial nullification was still going on when Hitler’s lawyers came here to study our legal system.
The majority’s reasoning is simple, if absurd. Although acknowledging that “Congress had ‘clearly intended’ all along to allow private enforcement,” it argues that the text does not say so explicitly, therefore Congress’s intentions, Supreme Court precedent, and decades of practice are irrelevant. The fact that this would allow lawmakers to discriminate against their Black constituents without interference from pesky civil-rights groups is an innocent coincidence. This interpretation of the law was teed up for the judges by Justices Neil Gorsuch and Clarence Thomas in another 2021 voting-rights case in which the conservative-dominated high court weakened prohibitions against voting discrimination.
This decision will probably go to SCOTUS for review, I understand, but fat lot of good that is likely to do.
The majority reaches its decision with a wooden, textualist analysis. It reaches it decision despite recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits. And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit.
So, yes, this is an outrage.
I am not a lawyer, nor am I a Constitutional scholar. I have a small pamphlet containing the actual text of the US Constitution and all amendments, to which I often refer.
I am not aware of any language in the US constitution that permits only official governmental entities can initiate legal action (a foundational adversarial process). Where are the legal precedents that make it clear that every law legitimately passed by Congress and signed into law by the POTUS must specifically state who can file suits relating to that law? Is the law that we're talking about the only one that hasn't specified who can sue under it and who can't? I have my doubts.
I would go further to suggest the following: The First Amendment specifically grants to the people the right to "petition the Government for redress of grievances." Therefore it clearly establishes a private right to bring legal actions. Period.
How are people supposed to address a grievance when the grievance is that the SCOTUS has made an Unconstitutional decision? What is the remedy?
Further: I don't have in hand the official records from the congressional hearing for the 3 SCOTUS nominees of TFG, but I'm pretty darn sure that each one was asked if he/she would respect legal precedents. And I'm pretty darn sure each one mumbled words that the average citizen would interpret as being a "yes" answer. Does the ruling we're talking about here reflect any respect for established law at all?
You need to read more.
The Bill of Rights itself wasn't held applicable to the states until the twentieth century. Until then, it was only binding on the federal government. Following the ratification of the Bill of Rights, states still had their own state religions, because the First Amendment didn't apply to them.
And as a general rule, a statute had to expressly provide for a private cause of action, or else it didn't exist. Add to that the requirement of standing, and the courthouse door was always much harder to open than people realize.
As you know, section 1 of the 14th Amendment clearly incorporates the Bill of Rights to state and local governments. While it is true that the Supremes didn't recognize this until the early 20th century, that is only because law isn't a science, it is restricted to what justices claim it is. "The law is a ass – an idiot," as Dickens put it.
"And I'm pretty darn sure each one mumbled words that the average citizen would interpret as being a "yes" answer"
I magat speak yes means: it depends!
The other thing that's weird – or maybe this is just how these things work – is that the 8th Circuit's decision only applies to the handful of states in its jurisdiction. It's mind-blowing that the court concedes so much of the opposing argument's points, but nonetheless rules it was based on "flimsy" grounds, whatever that is.
Clearly, I need to start reading Rachel Maddow. Not surprising Hitler sent his lawyers here to see how we did it.
Thank God we don't live in Argentina. They just elected a true nutball to save the country from 140% inflation. That's what happens when a situation is so bad even responsible leaders can't bring it under control – the ignorant population votes for a radical doofus out of desperation.
I'm not sure the USSC will uphold this decision. The conservative majority is opposed to "special" privileges for minorities. There's no acceptance by the court that racism is still a powerful political force in this century. So the court has been willing to strike down institutional reverse discrimination aka affirmative action. The presumption by the court is that the court can not presume that racism exists.
There's a weird reasoning that gerrymandering to prevent the election of a person of color IS discrimination but gerrymandering according to racial profiling that has the intention of diluting Democratic representation is OK. (And that's my interpretation – no court has said it that baldly.) This decision is too obviously racist IMO, too blatant an attempt to protect racially flawed laws from being adjudicated when there's a GOP administration.
By way of contrasting the mindset – the majority felt that there were white victims denied admission to college because of affirmative action. But this decision insulates states who have and are gerrymandering racially so badly that even THIS Supreme Court is striking them down. The other thing that makes this bad decision vulnerable if it comes before the high court is that this court is trying to redeem itself from accusations of being too partisan.
For people interested in the history of the Nazi adoption of Jim Crow as a model, I wrote some notes here, and linked to a longer piece.
As to what the Supreme Court will do, two judges will do what their patrons pay them to do. A third will open the floor to the highest bidder. No sense of the rest of the fascist faction of the Court.