A Most Unfortunate Session of the U.S. Supreme Court I

I am going to try to keep this set of comments mercifully short.  When I started this blog, I did not have the notion that it would turn into a blog on U.S. Constitutional law, and I still do not mean to approach it in those terms.  However, feeding an obvious predilection to dabble in Constitutional law that I’ve held since I started taking courses on the subject as an undergrad and a general sense of revulsion to the partisan direction of Federal adjudication in the past two decades, I’ve rediscovered just how useful it is to talk about principles of governance and state policy in terms of judicial precedence.  Thus, I really cannot avoid making some comments about a week of Supreme Court decisions that, with the partial exception of U.S. v. Windsor (no. 12-307, October Term, 2012), I find abominable, solidifying my impression that history should one day remember the Roberts Court in infamy and measure justices like Ginsburg highly among the Court’s great dissenters like Holmes.  

 

1.  The invalidation of Section 4b of the Voting Rights Act of 1965 in Shelby County, Alabama v. Holder  (no. 12-96, October Term, 2012) will immediately result in the reenactment and reapplication of testing and/or other devices to restrict voting by politically targeted populations (i.e. African-American, Hispanic, and other prevalent non-Republican voting blocs) in all states initially subjected to “preclearance” requirements of section 5.

Acknowledging my prioritization for the democratic process as an absolute procedural prerequisite to social justice in all areas of life (i.e. not only in government but also in households, in workplaces, in churches…etc.), I have a real problem when unelected justices start tampering with the democratic process to disenfranchise citizens with a stake in the gradual, peaceful transformation of American political life in order to secure the success of a broader reactionary partisan agenda threatened by demographic shifts in the American population.  In no uncertain terms, I consider the implications of this decision huge and, in the event that it produces at least some of its intended effects, worthy of a militant, revolutionary reaction! 

            To be certain, the Voting Rights Act of 1965 did not radically transform political outcomes in the Southern states and in the various other regions where racial and ethnic minorities were effectively restricted from actively participating in the democratic process.  In 1965, the South was in the midst of a political transition, but it was a strictly nominal one.  The political elites that dominated Southern politics transitioned from practically unanimous membership within the national Democratic Party to nearly unanimous membership in the national Republican Party.  Otherwise the partisan position of the South remained essentially unchanged.  Initially Southern Democrats/Dixiecrats and, thenceforth, Southern Republicans favored strictly limited federal involvement in the internal politics of Southern states, economic policies designed to take maximum advantage of reduced labor costs through restrictions on labor organizing and strictly minimal social welfare expenditures, lower taxation, preferences for pork-barrel spending in Congress on military bases and other federal expenditures likely to confer economic benefits on localized populations without extraneous requirements in social policy reengineering, and maintenance of Southern electoral influence on the federal level.  They resented the preclearance procedures (i.e. federal approval of changes in voting procedures) of the Voting Rights Act as a stigma in the same way that their ancestors had hated and despised the Reconstruction, carpetbagger Republicans, and freed Negro politicians.  On the other hand, they endured the embarrassment of their localities from media coverage of the Civil Rights movement and their inability to put their Negroes back into their place without the watchful and scornful eyes of the rest of the world hanging over them, and, ever since, they’ve tried really hard to convince the rest of the world that they’ve changed their repressive, racialist, anti-democratic, plutocratic ways. 

            However, since they’ve lost the ability, under the Voting Rights Act (and its larger authority under the Fifteenth Amendment), to legally exclude the populations that they don’t want to see voting from the polls, they’ve pursued a mixed set of strategies intended to enable them to hold their ground against shifting demographics.  As the South has increasingly become a subject in the voracious (but, by no means, universal!) colonization of space by economic globalization, its Republican Party elites have sought to outsource the business of excluding unfriendly voices from the voter rolls to third parties, dispatching mass mailings in minority neighborhoods to inform certain voters that they should go to the voting booths the Wednesday after the general election when everyone else votes (see Wang, “Voter Intimidation in 2012. And How to Stop It Next Time,” on Dēmos, at: http://www.demos.org/blog/voter-intimidation-2012-and-how-stop-it-next-time).  The broader effort of political elites, particularly in the South but also in other regions cited under Section 4B, to invalidate the Voting Rights Act needs to be assessed against both the economically induced effects of globalization on demography (and, thus, the erosion of a politically conservative voting bloc in the “Solid South”) and the aggressive privatization of voter deception and outright voter intimidation. 

To inadequately summarize a vast history in the efforts of a conservative political elite to prevent its own displacement through the relentless workings of the democratic process by endlessly changing the rules of the game to deprive its opponents of rightly gained majority rule, the ruling in the Shelby County case is all about stripping away federal oversight of voting in the South (and, of course, in other states like Arizona and in county or municipal jurisdictions with rapidly growing minority populations that threaten the rule of entrenched political elites), so that new restrictions can legally be placed in the way of voting, however likely they will exclude politically targeted groups.  The majority decision by Chief Justice Roberts does not invalidate the Section 5 practice of preclearance by the federal government of voting practices.  Rather, it ignores evidence of nearly a half-century of developments in new efforts to prevent minorities from voting in order to trumpet the great official, legal progress that has been made in registering and functionally integrating previously restricted voter populations.  However, in a period where the entrenched political power of white, conservative, Republican elites is being threatened in rapidly globalizing states like North Carolina and Georgia by the immigration of populations from more progressive regions and from outside the U.S., the Court has opened a window to enable the Republican Party to maintain both key Senate seats and to maintain control over electoral college votes in successive elections by changing electoral rules without the interference of the federal government. 

Issues have been raised about this decision regarding the Court’s relegation of the duty to reauthorize Section 5 preclearance requirements, based on contemporary statistical data on voter registration and participation, to Congress, in a period where Congress couldn’t legislate its way out of a paper bag, let alone reauthorize voting rights responsibilities to individual states and regions under the Voting Rights Act.  Criticisms of the Court are quite justified in this manner.  To some extent, they realize the larger point that the Court’s conservative majority, and Chief Justice Roberts in particular, is proceeding from a defined partisan agenda, intended to undermine the capacity of the federal government to ensure uniform access to voting rights.  In these terms, Roberts’ majority opinion constitutes a salvo against the principle of majority rule at a time in which the majority of the American population would, likely, guarantee a generation of Democratic presidential administrations, at least as many Democratic Senate majorities, and an eventual liberal majority within the Supreme Court and most of the federal circuit courts.  The Constitution has many obvious faults, but it is not a weapon for to be employed for the purpose of selectively incorporating and disenfranchising citizens based exclusively on how they might be inclined to vote.  Succinctly, I find this decision a disgusting abuse of judicial review, the most foul misuse of this session, whose effects will hopefully be overthrown peaceably by the march of demographic transformation and the irreversible and overpowering march of economic globalization in the U.S., to render, eventually, this decision an anachronistic and justifiably ignored piece of reactionary political precedence, like, say, the Dred Scott decision.

2.  The decision in Fisher v. University of Texas at Austin (no. 11-345, October Term, 2012) manifests an indeterminate legacy in relation to the broader development of affirmative action and ultimately raises questions on the entire project of the Civil Rights-era to elevate the status of previously undermined minority groups through education. 

At the outset, the point must be made that education is not the golden goose that liberal politicians and policy makers want to make of it in the age of economic globalization.  On the contrary, it is a single piece in a broader field of qualifications for enhanced income potential as industrial age employment opportunities disintegrate in the U.S.  Any college graduate in the U.S. today will tell you that a degree is not enough to guarantee that the student loans will get paid off.  For my part, I can render no negative judgment against affirmative action, understood in reference to hiring or admissions preferences tailored toward racial and ethnic minorities.  Absent an extended hiring process for my first job out of college, racial preferences have never given me a problem.  For that matter, I do not extraneously object to racial preferences if they serve the broader social objective of ensuring that minorities with adequate qualifications are represented in targeted professions.  That is the whole point of affirmative action, and, as an economist with experience teaching labor economics at the university level, I do not disagree with the logic that categorical openness in hiring processes relative to race, sex, and every other criterion will produce the best possible work force.  The point of affirmative action was not to entrench quotas into either education or labor, but to expand the fields of education and hiring to include previously excluded labor pools and take advantage of entirely new fields of talented labor, eager to learn and participate the profit-making efforts of firms. 

            With these considerations in mind, the logic apparent in the Fisher decision escapes me.  I understand that the notion of establishing quotas for particular racial groupings (in accordance with the understanding established in Regents of the University of California v. Bakke (438 U.S. 265)) does not constitute a favorable (much less constitution!) methodology for racially oriented hiring preferences.  On the other hand, I realize the basic point that, if racial admissions and hiring preferences were not enforced, then we would end up with lily-white student bodies and labor forces that would tangibly undermine the talent base against which firms engaged in global competition could draw.  Affirmative action, regardless of its well-reasoned criticisms, has made our national economy and our regional labor force pools better off.  As such, I cannot comprehend the logic apparent in questioning the University of Texas’ application of racial identification as a parameter in establishing a diverse student body, per Grutter v. Bollinger (539 U.S. 306 (2003)). 

          Clearly, the conservative majority sensed the opportunity to make inroads into the further invalidation of affirmative action.  However, in a much broader sense following political trends in Washington, the current deliberations in the Senate over immigration reform, if they were actually likely to produce an immigration reform platform for the Obama administration to enact, would expand the base of talent for American university programs, provided we do not prematurely close the door on the project of racial and ethnic diversity engrained in affirmative action policies.  The justices in the majority, by identifying with a more circumscribed reading on the effects of affirmative action as a means of compensatory justice for previously discriminated groupings, are, in this regard, behind the tide of a history inscribed by globalization.  Rather than evaluate the role of affirmative action in relation to the past sins of racial discrimination, we need to examine it in relation to contemporary and future efforts to maintain the quality of student bodies in American higher educational institutions and that of the larger American labor force through the maintenance of diversity.

            In handing this case back to the Fifth Circuit with a preference for non-racial qualifications, the Roberts Court inflicted as little damage as possible on institutions that have, over time, vastly benefited the U.S. economy by preempting the continuous construction of a racial hierarchy in higher educational processes.  That said, the vitality of affirmative action remains questionable in the aftermath of the decision.  We can certainly hold out hope for what comes in the future.  At this point, I consider this decision an ambiguous blessing where I would have rather seen the Court deny any hearing of the case.