Thursday, June 27, 2013

Supreme Justice (Almost)

There's literally too much to say about the decisions that have come pouring out of the Supreme Court in the last couple of days. The very good, the good, and the really ugly. The overarching theme, to me, is that there's absolutely no such thing as judicial impartiality, as clever as it was when John Roberts, in his confirmation hearing, sweetly declared that his job would be to call the balls and strikes, not to change the rulebook. How is it, if there were indeed such a thing, that the votes of eight of the nine are virtually always predictable, and spilt 4x4 in opposite directions? What clearer evidence is there that judges have their biases, and seek for ways to justify them?

And so it is that, in the space of twenty-four hours, Antonin Scalia can rage against the court's DOMA decision, claiming it had no right to overturn the express and bipartisan will of Congress, after having, without a second thought, voted to disqualify the Voting Rights Act, which was reauthorized by Congress with massive majorities in both houses. For that matter, Scalia, in his comments on same sex marriage, abandoned the remaining vestiges of any claim he might have on judicial restraint. Bordering on hilarious, in the context of a sober originalist regent of the right, he just let loose in a pastiche of paranoia, defensiveness, and extra-legal ranting.

As I understand it, the DOMA ruling was pretty clear: it's discriminatory and unconstitutional. The Prop 8 verdict, while the right outcome for same sex couples in California, was rendered on a technicality, leaving intact the anti-same-sex marriage laws in other states. But, given the implications of the DOMA decision, it seems likely that the laws in those states will eventually be struck down.

To say, as the Court did, that there's no longer a need for the voting rights act is to ignore the machinations in several states in just the last few years. How long did it take, after the ruling, for those states to begin enforcing their anti-minority laws? Hours. It's also annoying the way in which the court pulled its fast one: not invalidating the central feature of the Act, namely the requirement that certain states need prior federal approval before changing their voting laws. Rather, the court said the map is out of date, and needs Congressional re-drawing. Clever. Who says the justices don't follow politics? Because if ever there were a certainty, it's that Congress will never do that; not, at least, until teabaggRs have gone the way of slavery. Which they won't: invalidating the law will see to it that the voters in those states who might vote for reasonable people will never get the chance.

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