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Wednesday, September 28, 2016

WASHINGTON — We prefer to think of the Supreme Court as an institution apart from politics and above its struggles. In the wake of this week’s decision gutting the heart of the 1965 Voting Rights Act, its actions must now be viewed through the prism of the conservative movement’s five-decade-long quest for power.

Liberals will still win occasional and sometimes partial victories, as they did Wednesday on same-sex marriage. But on issues directly related to political and economic influence, the court’s conservative majority is operating as a political faction, determined to shape a future in which progressives will find themselves at a disadvantage.

It’s true that the rulings voiding the Defense of Marriage Act and California’s Proposition 8 show how the liberalizing trend on some social issues is hard for even a conservative court to resist.

The Defense of Marriage Act was invalidated because one of the conservatives, Justice Anthony Kennedy, has joined much of the American public in an admirable move toward greater sympathy for gay and lesbian rights.

And the decision on California’s anti-gay marriage law was reached by an ideologically eclectic majority on procedural grounds. Five justices held that the case had been improperly presented because the state of California declined to appeal a lower court’s ruling voiding the law.

This led to a middle-of-the-road outcome. The court declined to declare a national, Constitutional right to same-sex marriage, but did give gay-rights advocates a victory in California. By leaving the issue in the electoral sphere in most states, the court opened the way for further advances toward marriage equality, since public opinion is shifting steadily in its favor, fueled by strong support among younger Americans.

The marriage rulings, however, should not distract from the arrogance of power displayed in the voting rights decision written by Chief Justice John Roberts. His opinion involved little Constitutional analysis. He simply substituted the court’s judgment for Congress’ in deciding which states should be covered under the Section 4 of the Voting Rights Act, which required voting rules in states with a history of discrimination to be pre-cleared by the Justice Department.

The court instructed Congress to rewrite the law, even though these sophisticated conservatives certainly know how difficult this will be in the current political climate.

Whenever conservatives on the court have had the opportunity to tilt the playing field toward their own side, they have done so. And in other recent cases, the court has weakened the capacity of Americans to take on corporate power. The conservative majority seems determined to bring us back to the Gilded Age of the 1890s.

  • sigrid28

    The title of E. J. Dionne’s article says it all. Our SCOTUS interprets its role as political, and it has done so with racial overtones. Suppose the ship has sailed on the concept of a wise judicial without political affiliation. Then, let SCOTUS endure to political sanctions, such as term limits, rather than life-long appointments. Let its decisions be subject to appeal, just like any others. Until these required sanctions are in place, the court docket deserves to be flooded with case after case challenging wild voting restrictions installed THE DAY AFTER the Voting Rights Act was savaged by this activist court, many in states once required to obtain pre-clearance.

  • Lovefacts

    When the SCOUS rulings expanded civil liberties, conservatives screamed the court was making law. Now that the SCOUS rulings restrict or deny citizens civil rights and liberties to the government or business, conservatives celebrate. The current hyper conservative court supports expanded government control and business over individuals.

    While people are correct to be outraged at the SCOUS’s recent rulings such as cutting/nullifying the Voting Rights Act., let’s not forgot two of their more egregious rulings which supported business over individual rights:
    1. Their decision dealing with Eminent Domain, where the government can now claim this right for a business when the landowner refuses to sell to Walmart. Prior to this ruling, throughout our history Eminent Domain been applied to anything other than public works, roads, highways, and dams.
    2. The American United ruling where SCOUS declared business as a citizen. This decision overturned 120+ years of judicial rulings, several from the SCOUS, that other than for sole purpose of litigation and debt collection business was not a citizen.

    • nana4gj

      The Koch Brothers own the right wing Supreme Court.

      • rustacus21

        … but we own the government that authorizes the SCT. Why not try acting like it? It’s time we do what money can’t – network & elect citizens OUTSIDE the scope of money & start the change THERE! I’m not sure what people think, but the 5 conservative justices have presided in ways harmful to the GREATER number of the citizenry. Its well past time we organize, coordinate intelligent, smart, Constitution-based alternative responses to what is clearly a long-term campaign – since 1776 – to destroy – YES – DESTROY American Democracy. Look around the world & tell me a place w/a better governance system? & we’re letting ‘Potter’ types (from ‘It’s A Wonderful Life), full of hate, crippling envy & a love for creating misery for those who are defenseless against their $$$, to dictate how WE, THE PEOPLE run OUR government?! We should be ashamed allowing this to even get THIS FAR!!! I vote, I stay aware of the issues & the players & as patriots, that’s our ONLY requirement as citizens! Get w/it PEOPLE…

        • Sand_Cat

          I think the wealthy and corporations own pretty much our whole government. If people will do as you say, we might be able to get it back, but it will always be in danger.

          • rkief

            It’s the thing about “eternal vigilance,” isn’t it?

        • John Pigg

          I vote against Potter. I’m a George Bailey man.

          • rustacus21

            Then Bailey for President it IS!!! (well, in spite of that little ‘scandal’ w/the missing money, I guess… He replaced it after all, right?!)… Anyway, the Liberal/Progressive ‘way’ has never yet been tried in the history of our Democracy. For some reason, circumstances prevented our greatest ‘representatives’ (or ‘leaders’, if U will) from being able to extend the mandate we granted them – those ‘circumstances’ were ‘conservatives’ in every/any instance observed. Their jealous envy of our (Liberal/Progressives) successes is spotlighted in their ABSOLUTE refusal to be cooperative. During the Clinton administration, it was their obsessions w/his male ‘prowess’ & scandalizing it, thus hindering him (& his administration) from expanded greatness. W/the Carter administration, it was another case of PTSD, post-Vietnam & the nation’s voters doing that ‘hand-wringing’ thing, wondering what he was talking about, w/this ‘alternative’ energy crap. Here we are, 34 years later & still as obliviously wedded to fossil fuels as in 1979. Kennedy was about to ruin an entire new concept – proxy-war, to stunt domestic/international policy re-structuring, along peaceful Democracy configurations (see ‘To Move The World’ – Jeffery Sachs), but was the victim of yet another major conservative hate campaign in 100 years. Eisenhower was limited by post-Korean war obligations & conservative resistance to extending Democracy (education, as in Brown v. Board of Ed & Little Rock, w/National Guard intervention, etc.). FDR, dealing w/the aftermath of the Great Depression & unruly, conservative elite sedition, every step of the way… to name just those few in the last 80 – plus years. We have to get behind it, however & push to make sure elected representatives understand we know the difference between authoritarianistic & democratic policy imperatives – b/c we set them – out of determination or fear. But it’s still the choice of WE, the PEOPLE. The question is, no matter what conservatives do, we’re still the majority, so what do we want? Not what do we (the PEOPLE) think they (authoritarian conservatives) want us to want? W/out clear determination, they’ll simply tell us where to go – & that’s where we’ve gone the last decade…

          • John Pigg

            I’m actually a conservative. But I consider myself a Bailey conservative.

            I would argue you point that it has never been tried Debbs ran under the socialist ticket and did quite well. Well enough in fact for the Democrats to hijack his reforms and institute it in their platform giving us most of the social reforms they originally advocated for.

        • jarheadgene

          And so many of keep trying …..including you here, but so many times you feel like you are just spitting in the ocean….ESPECIALLY since we have to fight against the so powerful FAUX news…they have so many Americans convinced in their own lunacy to vote against their own interest.
          So many get convinced to kiss the asses of the likes of Steve Jobs, the Koch Bros…Romney….Ryan….etc…etc. SO MANY AMERICANS……SO MUCH STUPIDITY.

    • idamag

      I like to read a post that has facts instead of hate rhetoric. A person, in our state, was affected by the supreme court’s interpretation of eminent domain. Eminent domain once meant that public works could take part of your property for roads, sidewalks, alleys. Thanks to a supreme court ruling in 2002, It doesn’t matter if you are living in the house your father built, if walmart wants it they will take it. The “supreme” court also interpreted the first amendment to mean you could say anything you want in public and it does not have to be true. With the Citizens United thing, billions of dollars buy billions of lies. I say, “Wake up American and save our government before it is no longer a democracy.”

    • elw

      I read a very interesting study by the Sunlight Foundation in which they showed that 31, 385 weathy individuals, a number equal to one ten-thousandth of the U.S. population actually control who runs for office by their donations to candidates and of course Citizens United has contributed has greatly made that effort easier for them. It is interesting reading, here is a link: http://sunlightfoundation.com/blog/2013/06/24/1pct_of_the_1pct/

      • rustacus21

        I’m on this… Thanx for the great recommendation!!!

    • jarheadgene

      So very well put.

  • adler56

    repugnants are not worthy of American citizenship. Lying, cheating, greedy dumbasses like the righties in Congress and corporations do not belong in America.

    • idamag

      They certainly are more a liability than an asset.

  • howa4x

    Justice Thomas has the last one in the door syndrome. He took advantage of affirmative action and it helped him enter college and now he sees himself apart from his own path to where he is. He thinks he is a self made man. Affirmative action was possible because of the emerging political power that Afro-Americans had from the provisions of the Voting Rights Act that prevented southern states from discrimination and voter suppression. The right to vote with out suppression is enshrined in our constitution and I’m surprised strict constructionists like Scalia don’t do everything in their power to protect it. Instead conservatives like to cherry pick the constitution, using it where they see benefit and ignoring it where they don’t. These so called conservatives are the last protection that republicans have to maintain power. This is why they voted in the affirmative on citizens united. They have become political hacks using the court to further their cause and not in protection of citizen rights

    • idamag

      Justice Thomas is a disgrace to the race of people he is helping shaft.

      • Sand_Cat

        He is a disgrace to all people, and to this country and its system of “justice” and its method of choosing judges.

  • idamag

    We should have confidence in our Supreme Court, but we cannot. Since 2001, they have been legislating from the bench. The government was not set up that way. Our founding fathers had three branches for a balance of power. The supreme court’s duty is to judge on a law after it has been tested in other courts. They have become too powerful and they don’t belong to the people anymore.

  • elw

    I agree with EJ. Dionne conclusions the Radical Conservatives have been working on taking over since before Ronald Reagan took office. They may be really dumb about how to build their base, but you have to give them credit for having long-term plans that they never give up on. Their leaders know that they are in trouble when it comes to winning on a National level, at least right now, so they push in more subtle ways to gain power for the next go around. They are willing to take whatever power they can get a bit at a time, in any way they can. They have no morals or ethics, their goal is to win. The world they are offering us is one where women and people of color are second class citizens, slave wages for worker, no health and safety protection for workers, and no concern for the needy, disabled or ill people in our society. They yell about scandals, morality, and false dangers all to take our minds off of the real dangers their policies and actions are causing. They know that the combined voting power of Moderate and Progressive people of all Parties will contain them so they work on voting suppression and celebrate every tiny, little victory. Remember that the next time there is an election, even if it is only for dog catcher. Remember what happen in Texas, how the voters stopped a anti-abortion law from being passed. Your vote counts, so does your protest.

  • m8lsem

    The Court said, in essence, that it has always been the prerogative of the State where a marriage is alleged to have been contracted, to determine the validity or invalidity of that marriage. The Court next said that if State marriage A and State marriage B are both valid under that State’s laws, it is a violation of equal protection of the law for the Feds to treat those marriages differently. The areas of law involved thus were Federalism, and Equal Protection. Nothing radical about it.

    Citizens United, on the other hand, took black-letter law respecting the Corporation’s legal personhood (able to sue and be sued, be taxed, be free of government seizure of their property without payment, and so forth, which are essential to that form of business which in turn is essential to the economy) and extended it where it did not need to go for the corporation to function. After all, all its officers, directors, and shareholders have been free to spout off their mouths all along, while identifying the Corporation as the for-whom-spoken.

  • JSquercia

    The states wasted NO time in rolling out further voter restrictions that the Justice Department was able to stop during the previous election cycle .
    I am ASHAMED of my country for this blatently political decision .In fact I believe that Shelby County had just been stoped by the DOJ .Talk about Judicial ACTIVISM .The Conservatives always talk about overturning laws passed by Congress as inappropriate LEGISLATING from the BENCH and yet her we have them overturning a law passed by 98 to 0 in the Senate and with Only 33 negatives in the House . Talk about HUBRIS

    • rustacus21

      We, the people should not be intimidated or overwhelmed by all this; the safeguards in place after the Civil War were slowly dismantled by the rich. The same thing which brought about the end of the ‘Guilded Age’. As was the case following the 1st Great Depression. We, as a nation, didn’t come to the assistance of President Obama in the 2010 MidTerms, leaving him at the mercy of big money. But something else has to happen in conjunction w/a Liberal/Progressive victory for the majority of the House & increasing the current majority in the Senate. But we MUST STOP all this whining & hand-wringing about ‘oh poor pitiful US…’ & get organized & oust the 5 conservatives justices that are actively dismantling the Constitution & make sure the next 5 are, is not Liberal/Progressive, bear a history of lifetime support of actively UPHOLDING the Constitution! The must have court experience (i.e. Thomas’ deficiency); they must not be able to escape their inadequate, compromised pasts (Scalia, Roberts, Alito) or shift which ever way the more forceful wind blows (Kennedy). Arbitrary, destructive, oblivious, these are NOT terms we should identify officials of our highest judiciary branch & should go to ALL legitimate, legal lengths to have them removed ASAP…

  • rustacus21

    To continue to be stomped on, kicked around & beat up by the rich is unconscionable & American’s are behaving DISGRACEFULLY IN ALLOWING THIS TO CONTINUE! What we have are rich who have no respect for the rule of law. This article only scratches the surface. The deeper you go, the greater the realization of the threat facing our Democracy. Posting here & engaging in the political process if the easiest way of building support for broader, deeper Democracy that exercises greater Constitutional control over those FDR correctly identified as the ‘unruly elites’. The rule of law applies to them as well, so what are WE, THE PEOPLE waiting for?!?! Fear is NOT an option at this point – there’s nothing left to lose but our Democracy & it’s time the citizenry fight as viciously – intelligently, that is, non-violently w/out a doubt, to peaceably TAKE WHAT IS OURS & it begins w/building a campaign to remove the 5 conservative Justices who have taken their role to mean they don’t have to obey their judicial imperatives – only those which grant political dominance to the monied elites. American’s need to ask themselves this: What was the Revolution for Independence about? Answer that question & it gets easier to use the Constitution, the Declaration & the Federalist Papers as guidelines on how to proceed from THIS point in time…

  • tdm3624

    “In less diplomatic language, existing majorities may try to fix election laws to make it far more difficult for their opponents to toss them from power in later elections.”

    I agree. Whenever either party is in power they try so hard to keep that power, even if it means trampling the rights, freedoms, and opportunities of a majority of Americans. I wish a viable third party would rise up and challenge the status quo.

    • rustacus21

      But it’s not about majority ‘representatives’ trying to hold on to power; b/c it is they who are legislating on behalf of those under siege & in the process of being disenfranchised, that they (majority representatives) are establishing law so that it represents ALL equitably – w/out exception. The contest is more ‘fair’, in other words, putting power in the hands of voters & then ‘TRUSTING’ (majority) representatives to disperse it along Constitutional guidelines. Our history has proven this over & again. Only those representing minority, monied elite interests (vs. ‘minority’ interests of getting them caught up to justice/equality/opportunity-wise interests, as in the ‘disenfranchised’ minorities) ARE & have ALWAYS been guilty of legislative/judicial/executive abuses, w/the most recent examples being the slide into & unrelentingness (is that a word? – if not, I just invented it – LOL!!!) of this most recent Great Depression – courtesy of rich elite ‘minority’ money dictating legislative/executive/judicial imperatives – via MONEY power – not the interests or votes of the citizen majority. Not dismissing ‘ego’s’ of (majority/minority) legislators, the vast citizen majority has being so irratic & listening to that propagandized, faux-democracy mumbo-jumbo, that only adds to the confusion & focus on ever-greater degrees of non-sense. We know what works (Liberal/Progressive Constitutional policy frameworks) & should stop acting confused about it…

      • tdm3624

        I agree that politicians on one side have historically fought for a minority money elite, but in all fairness what about the other side focusing on their minority groups? I don’t think one side is all bad and one side is all pure. Both have agendas and both use their political power to further that agenda. The Democrats are no more altruistic than the Republicans.

        • rustacus21

          … well, the 1st thing U may want to do is realize who benefited from the tax cuts (the rich); the wars (the rich, creating more millionaires in the process); deregulation w/OUT police oversite (the rich & their peripherally connected); who took home more income/wealth gains – post–’08 Depression (the rich) & in every circumstance, who lost in all of the above categories & beyond – the Middle Class & expanding impoverished (between 2001-current). We should never make excuses for ANYONE behaving badly & injuring others in the process. U’r trying to compare the ‘powerful’ against the ‘powerless’ here, which is NOT by any means, what is being discussed in this article. It might be helpful to re-read this article, read thru ALL the commentary, saving yours for last & see what U come up w/. I know it’s time consuming, but self-Enlightenment has an even greater benefit – understanding U can share w/others & those less Enlightened. We have an election coming up next year. We need to help ourselves as a nation. Not JUST the rich, who do quite well, w/ lawyers AND politicians AND major media to state their case & gain their benefits. & U have… U’r vote & a voice in this insignificant, isolated media (Nat’l Memo) pocket? There’s simply no comparison…

  • daniel bostdorf

    To resolve the problems of life tenure…lawmakers must pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court’s membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year.

    Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified.

    Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.

    John Chait states it best regading term limits for justices of SCOTUS:

    “The current system of lifetime tenure creates real problems. Huge policy swings hinge on the simple health and longevity of Supreme Court justices. This results in very old justices clinging to their seats until a sufficiently friendly president can take office. It also gives presidents an incentive to nominate the youngest possible justice who can be confirmed, as opposed to the most qualified possible justice. And eliminating some element of the sheer randomness by which each party gets to appoint justices would tend to reduce the chances of the court swinging too far one way or another from the mainstream of legal thought.”

    • Sand_Cat

      Sorry, but what it needs is integrity and honest concern for what’s good for all the country on the part of both the president and the Senate. Without that, no scheme any of us can come up with will do more than occasionally stick a thumb in the dike.

      • daniel bostdorf

        There is no such thing as honesty and integrity throughout the history of politics.

        It is about what is politically expedient by the party and business interests who are in power.
        The dike was built by the politicians who controll the thumbs for the holes.

        There are no real leaks in the dike…just political power.

  • charleo1

    Just a thought. And, a hopeful one. We’ve all seen societal trends, right? And how
    they do sort of resemble a pendulum. Left, for a time. Then people forget how bad it was the last time Republicans were running things. So, people will give Conservatives
    another try. But in no time at all, Republicans quickly remind voters why they voted
    them out before. So, it’s back to the Left. So, as much as we lament the Supreme
    Court’s decision for Congress to reformulate law, in today’s political climate, is to nullify the ’65 legislation. However, that doesn’t mean we are going back. Progress
    has been made. That’s not to say there is no racism. Or that the election of Barack
    Obama signals we have entered into a post racial period. Certainly not. But, we will never again return to those days in Dixie. The poll tax, or literacy tests, or the White
    domination that required them. We have come too far, to ever tolerate such things
    in this Country again. And, how improbable, and impossible even, that seemed in
    1960.