Wednesday, 22 October 2014 / TRUTH-OUT.ORG

Shelby County: Congress Must Check and Balance the Roberts 5's Legislation from the Bench

Tuesday, 02 July 2013 14:57 By Rob Hager, SpeakOut | News Analysis

The Roberts 5 richly deserve the label of Ku Klux Kourt that Greg Palast ["Ku Klux Kourt Kills King's Dream Law, Replaces Voting Rights Act With Katherine Harris Acts"] pinned on them. The black robed five are as much vigilantes running roughshod over law and the Constitution on behalf of the money power who would enslave us all as were those white robed terrorists who served the racist slave power of an earlier time.

These legislators in robes no longer deserve the dignity of calling themselves a "court" because in case after case it is not "judicial power" that they are exercising. The word "kangaroo" comes to mind. Just because they work in a court building does not make their every order "judicial."

Yet another ruling from the legislative workshop of the Roberts 5, has now surgically overturned the landmark Voting Rights Act that redeemed the national disgrace of the criminally depraved Jim Crow era.  See A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009).

The Roberts 5 majority's surgical strike in Shelby County effectively overturns the most significant legal outcome of the Civil War; violates separation of powers by telling Congress how to legislate; invents a new rule of "state equality" for applying federal legislation to states that is nowhere remotely suggested by the Constitution, was expressly rejected by the leading precedent and is inherently preposterous; reverses numerous precedents; rejects the very idea of applying a known objective rule to adduced facts as defines the judicial process; and decides the case of parties that were not in court instead of focusing on the case before it - as the Constitution, Article III, requires.

The 15th Amendment did very little after Reconstruction to expand democracy to all citizens. The 1965 Voting Rights Act (VRA), King's Dream, and arguably the most important and effective law in American history, brought to bear legislative tools and administrative resources that a passive Constitution itself could not. The most important was the VRA preclearance requirement for changes in election law by states that historically discriminated.  But on June 25, 2013 Chief Justice John Roberts and his gang of regulars, forming their usual 5-4 lineup for abuse of the Constitution, in Shelby County v. Holder gutted this key feature of the VRA which gave it such amazing efficacy for quick and enduring enfranchisement of oppressed citizens still living under Jim Crow.

The Shelby County case is only one in a series of cases in which members of the Roberts 5 have abandoned their role as judges to legislate on profoundly important political questions without effective response to date from the country or its institutions. This is just the latest and, unless strongly checked, will not be the last case in which the Roberts 5 bear out James Madison's warning that "the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution."

After five justices (3 of them charter members of the Roberts 5) blatantly stole the 2000 election, the most prominent prosecutor in the country wrote what amounted to a public indictment of those justices for the high crime that "none dare call treason." Vincent Bugliosi,The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (2001). But Democrats did nothing to strip the Court of their usurped authority to intervene in elections. They were prostrated by their outdated belief in the ideology of judicial supremacy, the ideology that delegates to 5 justices the power to amend and deface the Constitution for partisan political ends at will. Liberals worried about what would happen toBrown v. Board, the seminal school desegregation decision, if we attack judges for their wrongdoing. As if America would have more segregated schools in the 21st century were it not for the Roberts Court.

When the Roberts 5 undermined Brown itself in Parents Involved, 551 US 701 (2007) Justice Stevens' wrote "no member of the Court I joined in 1975 would have agreed with today's decision." Not one, on a Court which also had a Republican majority. But liberal judicial supremacists still dreamed that the Supreme Court ethos that started in the New Deal and lasted about four decades was the norm, and that the current aberration will eventually pass if the liberals just have enough patience to uphold the undemocratic ideology of judicial supremacy.

Then came Citizens United, one of six decisions since 2006 (a seventh is on its way next term) by which the Roberts 5 have overthrown democracy itself on behalf of the money power by extending the Nixon Court's original mandate for corrupt elections in Buckely v Valeo and Bellotti. But still, the liberals who believe in judicial supremacy do nothing except play into the hands of the Court. They politely divert energies to the futile and counterproductive advocacy of a Constitutional Amendment, their judicial supremacy ideology blinding them to the obvious. It is not the Constitution that needs correcting. It is five justices on the Court that are themselves acting in blatant and unrestrained violation of the Constitution, who need correcting. Such lawless judges will predictably give any amendment of the Constitution the same cavalier treatment they are giving to the current text of the Constitution. With a new amendment they would be, if possible, even more unbridled, since there would be no precedent interpreting the new language to curb their perverse creativity, at which Roberts himself excels.

Liberals refuse to use the power contained in the Constitution as a check and balance on the Court because of their adherence to the logical fallacy of the slippery slope. Article III, Sec, 2, Clause 2 Sentence 2 of the Constitution gives Congress control over the appellate jurisdiction of the Supreme Court. That power is frequently invoked by Republicans seeking to overturn Supreme Court decisions. But it scares the liberal judicial supremacists still starry-eyed from those glorious four decades when the Court served as guardians of constitutional democracy as though that era defines the fundamental nature of the US Supreme Court, rather than understanding that period as an exception in American history.

Without judicial supremacy, they worry: What if Republicans were to use Article III to strip the Court of jurisdiction. What then would happen to Brown v Board? Someone needs to inform these liberals that Brown v Board is already on its way to conversion to serve white privilege under the banner of "reverse-discrimination" raised by the Roberts 5.

 It was the Supreme Court under that servant of the slave power, Chief Justice Roger Taney, that can be said to have been most responsible for throwing a match into the tinder of complex reasons for the Civil War. That match was the Court's very first decision that exercised judicial supremacy over Congress. Dred Scott (1857) declared Congress's carefully negotiated 1820 Missouri Compromise that banned slavery from the then northwestern territories unconstitutional. This power to declare territories free of slavery had been exercised from the time the Constitution was drafted. The 1787 Northwest Ordinance banned slavery from Ohio to Minnesota.

This power of Congress to exclude slavery from the territories and from newly admitted states was the premise for the long-game by which slavery would be first contained within the cotton-growing South and then abolished by law once the slave states were outnumbered. This long-game allowed citizens of the free states to bide their time with the excrescence of slavery in order to avoid a war they could lose until at least there were enough free states to outnumber the slave power.

The Taney Court upset 70 years of sensitive inter-sectional political negotiations and compromises on this defining issue of whether the promises of the Declaration of Independence could eventually be realized in the United States. Taney redefined the Constitution as being a racist document, which imposed the false and most extreme pro-slavery views upon an ongoing political debate over the meaning of the then enormously respected Constitution.

Two years later in Abelman v Booth (1859), the Taney Court completed its two punch combination against the Constitution. Abelman was the first case where the Supreme Court claimed and exercised judicial supremacy over states in order to overturn a state Supreme Court decision refusing to enforce an Act of Congress as unconstitutional. The Wisconsin Supreme Court, after making a thorough analysis of the Fugitive Slave Act of 1850 and the cognate provision of the Constitution, reached the conclusion that the 1850 law violated the Constitution and that federal slavecatchers could not operate under that law in the state of Wisconsin. By asserting judicial supremacy over Wisconsin and the right of any state to make its own interpretation of the Constitution, Taney again asserts judicial supremacy to overturn 70 years of intricate sustained jousting with the slave states over this complicity with evil - as the free states increasingly came to see the fugitive slave issue.

These two cases in the final years before the Civil War attempted to impose the Court's pro-slavery opinions on the meaning of the Constitution with respect to the key issues upon which there had been intensive sectional debate from the very beginning: the authority of federal legislation to abolish slavery in the territories and in newly admitted states, and the federal authority to kidnap alleged fugitive slaves and to deny them due process. 

Strangely, the Civil War South has become identified with state's rights. But up to the outbreak of the Civil War, it was the slave power South through its control of the Supreme Court, the Presidency and the Senate that denied state's rights and sought to impose a centralized pro-slavery version of the Constitution on the states. It was the purist abolitionist William Lloyd Garrison who passionately advocated secession from the Union in those years, though periodic threats also emanated from southern politicians.

By seeking to terminate further political debate over the proper interpretation of the Constitution, the Supreme Court shaped an essential link in the chain of events leading to war. The side which could best convince its adherents that it was the proper defender of the Constitution gained moral advantage that directly yielded political, including potential military, power. Americans in the early 19th century loved their Constitution and were prepared to fight for it. In both sections lived people who put adherence to such factors as the Constitution above sectional views toward slavery. See David Williams, Bitterly Divided: The South's Inner Civil War (2010).

The Civil War was in effect fought over the proper meaning of the Constitution with regard to slavery, a debate which had been pursued before the war by such champions as Senators Salmon Chase and Charles Sumner in the North, and their counterparts in the South, such as Georgia Senator Robert Toombs who dared bring the South's constitutional arguments to Boston on January 24, 1856 and endured after the war as a leading advocate of Jim Crow.

Sen. Sumner, for example, strongly supported the Wisconsin Supreme Court's Abelmandecision in the Senate on February 23, 1855, reasoning with powerful, extended legal argument that the 1850 Act was "an assumption by Congress of power not delegated to it under the Constitution, and an infraction of rights secured to the States." In the case of Sumner, he was such an effective expounder of the proposition that the Constitution did not support slavery that the slave power attempted to assassinate him, days after his incendiary "Crime Against Kansas" Senate speech opposing the attempt to make Kansas a slave state by violence. Sumner's observation that events in Kansas had given rise to national "mutterings of civil war" became personal when Sumner himself was ambushed on the floor of the Senate on May 22, 1856.

The assassin was only thwarted by the intervention of witnesses after he continued beating an unconscious Sumner after delivering 30 blows with his gutta percha cane. A judiciary controlled by the slave power ignored the possible accomplices suspected by Sumner and others, P. A. Stovall, Robert Toombs, Statesman, Speaker, Soldier, Sage (1892) 142-43, and delivered a mere slap on the wrist to the would-be assassin. 

Southern apologists have explained away this assassination attempt as a manifestation of southern "honor," rather than as a deliberate tactic to win the essential constitutional argument by eliminating the lawyer-politician who was the most effective and uncompromising advocate for an anti-slavery Constitution. The assassination attempt did succeed in sidelining Sumner during the years of his recuperation. See W. H Hoffer, The Caning of Charles Sumner: Honor, Idealism and the Origins of the Civil War (2010); S. Puleo, The Caning: The Assault That Drove America to Civil War (2012).

The Supreme Court soon after heard reargument on and then decided Dred Scott, an appallingly written and reasoned, meanspirited decision that, in the absence of Sumner, drew the forceful and well-reasoned opposition of then-lawyer Abraham Lincoln. Lincoln directly challenged the Court's assertion of judicial supremacy in his debates with slave-power puppet Steven Douglas, whom Sumner suspected along with Toombs of complicity in his attempted assassination.

President T. Roosevelt explained that "Lincoln's … great public career began, and was throughout conditioned by, his insistence, in the Dred Scott case, upon the fact that the American people were the masters and not the servants of even the highest court in the land, and were thereby the final interpreters of the Constitution. If the courts have the final say so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people." In Lincoln's words, if the Supreme Court has the last word on the Constitution, "the people will have ceased to be their own rulers."

These cases in which the slave power used its control over the Supreme Court to win what they could not get from Congress alone are the origins of the two-fold judicial supremacy doctrine that today claims for the Court authority to override both the separation of powers and also the dual sovereignty of federalism. Since Lincoln won the war over this question of judicial supremacy, while Taney died a widely reviled bankrupt insulted by Sumner and ignored by Lincoln, one would have expected the judicial supremacy ideology to have died with Taney during the Civil War. But the doctrine was revived with the end of reconstruction to convert the 14th Amendment to empower railroad and other robber barons during the long Gilded Age of the late 19th and early 20th century.

This historical context for the 15th Amendment's guarantee of the right to vote is important for understanding exactly how fundamentally the Roberts gang violated the Constitution in Shelby County v. Holder. The Court based its invalidation of a law that is specifically authorized by the 15th Amendment on the general "federalism" grounds that a state has power to regulate its own election under the 10th Amendment. In another case last year, such federalism concerns were presented to the Court as a reason to uphold Montana's right to enact its own election laws for the purpose of safeguarding the integrity of its elections and thus its republican sovereignty. According to C.J Roberts in Shelby County: "States retain sovereignty under the Constitution." But the Roberts 5 totally ignored those concerns when invoked to keep money out of politics and, without even the dignity of granting the sovereign state of Montana a hearing, summarily forced Montana to accept the corrupt regime for state elections mandated by the Roberts 5 inCitizens United for federal elections. If Citizens United is the Dred Scott of the overthrow of democracy by the money power, then Montana's case was its Abelman v Booth, an arrogant power grab, dismissing legitimate, constitutionally based federalism concerns such that now severely limits the country's options for recovering the Constitution from the money power. 

The Montana shows the Roberts 5's concern with federalism and state sovereignty in Shelby County to be opportunistic and shallow. In election matters, as Justice Ginsburg's dissent inShelby County points out, it is Congress that expressly possesses the power to enact legislation on the manner of holding federal elections and on enforcement of constitutional voting rights in all elections. Id. note 2. The Constitution gives the Court no role to play in these matters, whether in federal or state elections, even assigning in Article I, Sec. 5, the power to "judge" federal elections to Congress. This clause marks the only grant of judicial power to Congress, other than for impeachment trials where the Court accordingly concedes that it has no role to play. That the Constitution thus shows a wise intention to keep the judiciary out of elections has not been sufficient to keep the Roberts 5 from meddling in this legislative concern.

In the Montana case federalism and state sovereignty concerns combined with the elections clauses of the Constitution should have precluded any Supreme Court review of the Montana Supreme Court's decision. Unlike Shelby County, the Montana case was not decided under the Civil War Amendments (CWA). Within the ambit of their application to the abolition of slavery, enforcement of civil rights and safeguarding of voting rights, the CWA expressly abrogated states rights, or "federalism." This alteration of the Constitution's dual sovereignty template for these particular subjects became the legal expression of the justification for the enormous cost in blood and resources of the Civil War. The CWA once and for all terminated "federalism" on these subjects that were of such profound national concern as to caused the enormous tragedy of the continent's most deadly organized warfare.

More importantly, in formulating both the CWA as well as other election-related amendments Congress expressly retained for itself the power to enforce the amendments by enactment of necessary legislation.  Lincoln had won this battle over the pernicious Supreme Court claim to judicial supremacy. Congress had learned the lesson that Lincoln taught to keep the Court out of reconstruction by taking the full power unto itself to decide what was necessary to enforce the CWA rights without the interference of bogus constitutional objections coming from a biased and unelected Supreme Court. Justice Ginsburg quotes a scholar in pointing out that the remedy provided by the Civil War "amendments was expressly not left to the courts." The 15thAmendment resides at the very intersection of this intention to exclude the Court from CWA enforcement and the redoubled general intention similarly expressed in every election related amendment to reserve the power to enforce election rights to Congress, where that power had always resided.

Chief Justice Roberts' decision in Shelby County thus violates two fundamental constitutional principles in overturning a law Congress enacted pursuant to its CWA powers with respect to voting rights. First, it breaches the separation of powers principles embedded into those amendments when they were proposed by Congress and ratified, both in deliberate response to the misbegotten claims to judicial supremacy of the Taney Court as well as to the general dangers of an unelected and irresponsible judiciary taking control over elections, a danger long acknowledged by the Supreme Court in its self-abnegating "political question doctrine."

Second, the Roberts' decision attempts to undo the very outcome of the Civil War by reviving "federalism" and "sovereignty" concerns as a touchstone of validity on a subject matter where such concerns were expressly abrogated by the Constitution. The racial politics motivations of the Roberts 5 are clear because the Court paradoxically denied, only a year ago, in the Montana case, actual valid federalism concerns regarding state elections in a context where they had not been abolished, but rather supported by both Congress and the executive branch, and should therefore have been respected by the Supreme Court. The common feature of these doctrinally inconsistent decisions is that the Roberts 5's handling of the Montana case also served the interests of plutocrats in disenfranchising citizens from their right and power to deny a corrupted government "the consent of the governed" by means of fair and clean elections.

Beyond those two fundamental constitutional violations, Justice Ginsburg points out the failure of Chief Justice Roberts' majority decision to even state an objective standard to which it was holding Congress – that is, the law under which unelected judges presume to second guess the elected representatives of the people. Though the historical record would suggest that the Court has no proper role to play at all in this matter, history since that time has given the Court the minor role of determining whether what Congress has done in exercising its plenary CWA powers was, under the circumstances, "rational." C.J. Roberts rejects application of a standard, other than a highly subjective "sufficiently related to the problem" descriptor, which Roberts first rolled out in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 (2009). Since Justice Ginsburg goes into great length with regard to the factual circumstances considered by Congress, and upon which the rationality of Congress' reauthorization of VRA preclearance could not remotely be questioned, C.J.Roberts ducks the facts by saying he is not even interested in this extensive record proving the rationality of Congress. This is further evidence that in this decision, the Roberts 5 were not performing a judicial process. C.J. Roberts' refusal to state an objective rule under which the Court is exercising authority, and then his rejection of the judicial task to assess the facts to which any such rule would apply, abandons use of the fundamental judicial tools which define the judicial process.

 Beyond those violations, Justice Ginsburg shows that since the reauthorization of VRA's preclearance authority would be uncontestably needed under any standard with respect, specifically, to the plaintiff Shelby County and to Alabama generally, due to their documented "sorry history" of violations, there was no basis for the Court to rule on the application of the preclearance requirements for other possible plaintiffs or contexts, which is what the Court did in effect. That is, if the Roberts 5 were acting within their judicial authority to decide actual cases of parties before them, to which they are limited by Article III, they would have no occasion to extend their inquiry generally to other parties and claims not before the court to determine some abstract potential inequality in the treatment of different states for VRA preclearance.

As a legislator, C.J. Roberts rules that he would prefer Congress to periodically redo its factual analysis of the need for requiring preclearance of states over the method that Congress did use. Congress' method for updating the geographical reach of preclearance prophylaxis was setting the baseline as those states that were proven discriminators before 1965, and then allowing bailout at their own initiative on the basis of keeping a clean record. Congress used something like probation for the serial violators of the 15th Amendment. The Court duly noted this built-in updating mechanism: "A covered jurisdiction could 'bailout' of coverage" if it had not discriminated against voters in the previous 10 years. But it ignored that method as satisfying any rational need for taking account of changes in need for preclearance over time.

The leading precedent overturned by the Roberts 5 had held: "After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims." This is what the bailout procedureIn any other case the choice between these two legislative approaches would not be a matter for a court to decide. They are different legislative choices which balance any number of known, unknown and unknowable factors and hunches all appropriate to the legislative process. But C.J Roberts picks out just those factors that lead to his preferred conclusion, primarily that the jurisdictions covered currently have more equal registration numbers than some uncovered jurisdictions.

 C.J. Roberts claims the power for the judiciary to repeal historic prophylactic legal reforms that grew out of extreme historic circumstances once those circumstances have ameliorated due to those very reforms.  As a politician, he understands that requiring the contemporary corrupt and dysfunctional Congress to act to preserve the reform on a partisan issue such as this will inevitably lead to stalemate and effective permanent repeal of the key judicially-invalidated Sec 4 provision that determines the geographical scope of the preclearance provision that has made the VRA so effective. Without Sec. 4, Sec. 5 preclearance has no geographical scope and is effectively repealed.

Justice Ginsburg labels as "hubris" the Court's venture into giving advisory opinions about the possible application of the law to parties not before the Court. Interestingly this is an approach that has been limited exclusively to First Amendment litigation on grounds of the general "chilling effects" on potential other speech and speakers not before the court. This technique of deciding cases of parties not before it was also used in Citizens United for justifying that advisory opinion on the reach of the concept that money is speech. There were actually no citizens before the court in Citizens United claiming that they wanted to hear more corporate political advertising - though that was the "right" which the Court purportedly protected in that case.

In Shelby County, the only parties before the Court could make no credible response to the fact that their own proven discriminatory conduct within the past 10 years justified the continued use of Congress' powers to require pre-authorization of changes in their election laws as it had since 1965. So the Court, as it did in Citizens United, argued that some other case not then before the Court, maybe Arizona or Alaska, would violate the Constitution because continued preclearance may theoretically not be currently justified there. But that is not how the judicial process works. Looking at the broad application of a policy to the nation as a whole is how the legislative process works. Moreover, as the leading precedent noted, it is an "acceptable legislative fashion" for a legislature to "chose to limit its attention to the geographic areas where immediate action seemed necessary." 

If the Constitution required Congress' different responses to comparable problems to be proportional to their relative seriousness, then the whole war on terrorism would be unconstitutional nearly 12 years after 9/11, unless it targeted falling furniture accidents withcomparable resources, as one comedian observed. The Courts do not have the constitutional authority to tell Congress how it must equalize its response to different problems or to repeal prophylactic responses no longer deemed necessary or up-to-date according to some judicially-selected metric.

The judicial role is limited to determining whether the party has raised a legitimate reason to preclude application of a law to itself because Congress could not have rationally deemed preclearance to be a relevant remedy for potential discrimination by that one party, Shelby County. Anything else lies beyond the judicial process in the realm of legislative power.

Roberts and his gang in this and other cases routinely invent whatever reasons and rules and processes they need to protect plutocrats from the law. In this case, their goal is clearly to revive Jim Crow suppression of the franchise of persons who would likely vote against Republicans, as Greg Palast contends. Unable to make any case that Congress' criteria for applying VRA preclearance to Shelby County election law changes is irrational or in any way questionable, the Roberts 5 premise for its decision was forced into irrationallity. C.J. Roberts reasoned that because the VRA has been demonstrably effective in thwarting attempts to suppress equal voting by citizens, its protections are no longer needed. This is, as Justice Ginsburg pointedly phrased it, "like throwing away your umbrella in a rainstorm because you are not getting wet."

The Court in Shelby County, as it did in Citizens United, and in a series of other cases, has blatantly violated the separation of powers by appointing itself a super-legislature on issues of the most profound importance to the nation. There is no call here, any more than there was needed in Citizens United and the numerous other cases where the Roberts 5 are using these same tactics, for proposing a futile constitutional amendment to change the Roberts 5's idiosyncratic, textually unsupported reading of the Constitution. The need is to force them to comply with the fundamental Constitutional principle of the separation of powers.

To extend Justice Ginsburg's apt umbrella metaphor, Roberts 5 justify their forays into legislating with excuses just as irrational as the simpleton who refuses to investigate the evidence all around of rain, refuses to accept the conventional test that rain is wet, and then throws away the umbrella as unnecessary while alleging those who would keep the umbrella to be irrational. Umbrellas are necessary, they say, only after you are already wet. If a legislature had made such a choice it would be irrationally ineffective in avoiding the rain of Jim Crow. But when the Court makes this choice, the judicial supremacy ideology strongly rejected by the great presidents Madison, Jefferson, Jackson, Lincoln and two Roosevelts elevates it to the final word on the subject by the American people. This turns the people who accept this ideology into the real fools.

These five do not care about determining the specific facts for the specific cases that judges are hired to deal with, nor what any court before them thought the Constitution requires. This case again changes the rules by overturning precedent just as the same five did in Citizens United.

These five create new bizarre, but transcendent, "constitutional" principles as may be needed to get their desired political results. Here it was the idea of "equality of States" which, as long understood, appropriately "applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." South Carolina v. Katzenbach, 383 U. S. 301 328-39 (1966). In Citizens United,  it was the bizarre notion that unlimited political investments in the form of "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

The parallels with the non-judicial conduct in Citizens United by C.J. Roberts' Shelby Countyopinion are many. There is now a desperate need for Congress to finally make an effective response to the Supreme Court's serial constitutional violations, especially its violation of the separation of powers by grabbing and applying legislative power to political questions outside their judicial purview and unhinged from any accepted judicial process.

Perhaps this case that seeks something as profound as to undo the outcome of the Civil War and relegate many citizens primarily in the South back to second class Jim Crow status will be seen as so historically perverse and legally illegitimate as to jar Congress out of its torpor anduseless platitudes about constitutional amendments to take real action against the Roberts 5.

The public must demand that Congress use its Article III constitutional power to strip the Supreme court of appellate jurisdiction over any case arising under the Voting Rights Act that questions Congress's plenary authority under the 15th Amendment to guarantee the right to vote in federal and state elections without regard to any newly purported right to "equality of States." At the same time, Congress should strip the Supreme Court of jurisdiction over its "money is speech" decisions which similarly distort the First Amendment to disenfranchise the vast majority who cannot buy politicians and policy. These are closely related and overlapping issues that should be dealt with in an omnibus bill that strips this Court of as much of its judicial review powers as needed to contain the Roberts 5 within their proper judicial functions and especially to remove them from any further involvement with the inherently "political question" of elections. See Rachel E. Barkow, More supreme than court? The fall of the political question doctrine and the rise of judicial supremacy, 102 Colum. L. Rev. 237 (2002)

These 5 are inflicting potentially irremediable damage on the country in numerous areas of policy. If they fail to cooperate with this venerable limitation on their Article III powers, accepted by other Supreme Court decisions going all the way back to the early 19th century, impeachment and prosecution must be raised as appropriate remedies for judges who prove themselves to be the lawbreakers.

The Roberts 5's non-judicial process utilized for the purpose of denying voting rights already violates 18 USC. §241 which punishes "persons [who] conspire to ... oppress, ... any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States," (including equal access to state rights), if there is even peripheral -- as there clearly is in the Shelby County case – or even no state involvement. See United States v. Guest, 383 US 745, 782 (1966) ("§ 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendmentrights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.") 

Any immunities to which their judicial robes might entitle the offending justices should be stripped when, as in the Shelby County and Citizens United cases, they act outside the scope of their judicial authority by abandoning judicial processes in order to usurp legislative and supra-legislative powers. If current law is deemed to insufficiently place the Roberts 5 on notice that they have crossed the line to criminal conduct, then Congress should hold hearings on new legislation that would clearly distinguish judicial process from legislative process. Congress could create a new Article III tribunal, with no appeal to the Supreme Court to hear claims against Supreme Court justices who deny important constitutional rights by means of violating the separation of powers. This would give Congress a context within which to expose the Robert's 5's non-judicial, extra-legal bases for its decisions and to deconstruct those decisions into their operative political terms.

T. Roosevelt said during the late-Gilded Age Lochner era, a time like the pre-Civil War era and the current period when the Supreme Court inflicted enormous injury on the country by violating the Constitution in service of plutocrats: "when a judge decides a Constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it is wrong. … it is both absurd and undignified to make a fetish of a judge or anyone else."

Support that liberals lend to the judicial supremacy ideology in the current era is an absurd and undignified "fetish." The slippery slope that they fear could be dealt with by adopting T. Roosevelt and the Progressive Party's proposal of a century ago for allowing the people to vote in a "recall" election on issues such as 5-4 decisions that affect everyone, and on which the public generally thinks the Court got it all wrong. Congress would have the authority to conduct a referendum that it could declare either binding on or instructive to those voting for the law to determine whether Congress got the Constitution right, or whether these 5 judges who are all wet got it right. 

If the referendum results support congressional power, and the Court still insists on violating the publicly supported interpretation of the proper separation of powers, the consequences should include civil and criminal remedies, Article I, Sec. 3 impeachment by Congress, and executive removal for failure to maintain Article III, Sec. 1 "good Behaviour." At the current crisis point to which the Roberts 5 have brought the country since 2006, corrupting its politics, reviving Jim Crow, and much more, a new solution is required for the recurring problem of a politicized, anti-democratic judiciary that has plagued much of US History since Roger Taney and Dred Scott.

Such a reform could only be accomplished through a non-partisan single issue focus on the fundamental question of democratic elections.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.


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Shelby County: Congress Must Check and Balance the Roberts 5's Legislation from the Bench

Tuesday, 02 July 2013 14:57 By Rob Hager, SpeakOut | News Analysis

The Roberts 5 richly deserve the label of Ku Klux Kourt that Greg Palast ["Ku Klux Kourt Kills King's Dream Law, Replaces Voting Rights Act With Katherine Harris Acts"] pinned on them. The black robed five are as much vigilantes running roughshod over law and the Constitution on behalf of the money power who would enslave us all as were those white robed terrorists who served the racist slave power of an earlier time.

These legislators in robes no longer deserve the dignity of calling themselves a "court" because in case after case it is not "judicial power" that they are exercising. The word "kangaroo" comes to mind. Just because they work in a court building does not make their every order "judicial."

Yet another ruling from the legislative workshop of the Roberts 5, has now surgically overturned the landmark Voting Rights Act that redeemed the national disgrace of the criminally depraved Jim Crow era.  See A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009).

The Roberts 5 majority's surgical strike in Shelby County effectively overturns the most significant legal outcome of the Civil War; violates separation of powers by telling Congress how to legislate; invents a new rule of "state equality" for applying federal legislation to states that is nowhere remotely suggested by the Constitution, was expressly rejected by the leading precedent and is inherently preposterous; reverses numerous precedents; rejects the very idea of applying a known objective rule to adduced facts as defines the judicial process; and decides the case of parties that were not in court instead of focusing on the case before it - as the Constitution, Article III, requires.

The 15th Amendment did very little after Reconstruction to expand democracy to all citizens. The 1965 Voting Rights Act (VRA), King's Dream, and arguably the most important and effective law in American history, brought to bear legislative tools and administrative resources that a passive Constitution itself could not. The most important was the VRA preclearance requirement for changes in election law by states that historically discriminated.  But on June 25, 2013 Chief Justice John Roberts and his gang of regulars, forming their usual 5-4 lineup for abuse of the Constitution, in Shelby County v. Holder gutted this key feature of the VRA which gave it such amazing efficacy for quick and enduring enfranchisement of oppressed citizens still living under Jim Crow.

The Shelby County case is only one in a series of cases in which members of the Roberts 5 have abandoned their role as judges to legislate on profoundly important political questions without effective response to date from the country or its institutions. This is just the latest and, unless strongly checked, will not be the last case in which the Roberts 5 bear out James Madison's warning that "the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution."

After five justices (3 of them charter members of the Roberts 5) blatantly stole the 2000 election, the most prominent prosecutor in the country wrote what amounted to a public indictment of those justices for the high crime that "none dare call treason." Vincent Bugliosi,The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (2001). But Democrats did nothing to strip the Court of their usurped authority to intervene in elections. They were prostrated by their outdated belief in the ideology of judicial supremacy, the ideology that delegates to 5 justices the power to amend and deface the Constitution for partisan political ends at will. Liberals worried about what would happen toBrown v. Board, the seminal school desegregation decision, if we attack judges for their wrongdoing. As if America would have more segregated schools in the 21st century were it not for the Roberts Court.

When the Roberts 5 undermined Brown itself in Parents Involved, 551 US 701 (2007) Justice Stevens' wrote "no member of the Court I joined in 1975 would have agreed with today's decision." Not one, on a Court which also had a Republican majority. But liberal judicial supremacists still dreamed that the Supreme Court ethos that started in the New Deal and lasted about four decades was the norm, and that the current aberration will eventually pass if the liberals just have enough patience to uphold the undemocratic ideology of judicial supremacy.

Then came Citizens United, one of six decisions since 2006 (a seventh is on its way next term) by which the Roberts 5 have overthrown democracy itself on behalf of the money power by extending the Nixon Court's original mandate for corrupt elections in Buckely v Valeo and Bellotti. But still, the liberals who believe in judicial supremacy do nothing except play into the hands of the Court. They politely divert energies to the futile and counterproductive advocacy of a Constitutional Amendment, their judicial supremacy ideology blinding them to the obvious. It is not the Constitution that needs correcting. It is five justices on the Court that are themselves acting in blatant and unrestrained violation of the Constitution, who need correcting. Such lawless judges will predictably give any amendment of the Constitution the same cavalier treatment they are giving to the current text of the Constitution. With a new amendment they would be, if possible, even more unbridled, since there would be no precedent interpreting the new language to curb their perverse creativity, at which Roberts himself excels.

Liberals refuse to use the power contained in the Constitution as a check and balance on the Court because of their adherence to the logical fallacy of the slippery slope. Article III, Sec, 2, Clause 2 Sentence 2 of the Constitution gives Congress control over the appellate jurisdiction of the Supreme Court. That power is frequently invoked by Republicans seeking to overturn Supreme Court decisions. But it scares the liberal judicial supremacists still starry-eyed from those glorious four decades when the Court served as guardians of constitutional democracy as though that era defines the fundamental nature of the US Supreme Court, rather than understanding that period as an exception in American history.

Without judicial supremacy, they worry: What if Republicans were to use Article III to strip the Court of jurisdiction. What then would happen to Brown v Board? Someone needs to inform these liberals that Brown v Board is already on its way to conversion to serve white privilege under the banner of "reverse-discrimination" raised by the Roberts 5.

 It was the Supreme Court under that servant of the slave power, Chief Justice Roger Taney, that can be said to have been most responsible for throwing a match into the tinder of complex reasons for the Civil War. That match was the Court's very first decision that exercised judicial supremacy over Congress. Dred Scott (1857) declared Congress's carefully negotiated 1820 Missouri Compromise that banned slavery from the then northwestern territories unconstitutional. This power to declare territories free of slavery had been exercised from the time the Constitution was drafted. The 1787 Northwest Ordinance banned slavery from Ohio to Minnesota.

This power of Congress to exclude slavery from the territories and from newly admitted states was the premise for the long-game by which slavery would be first contained within the cotton-growing South and then abolished by law once the slave states were outnumbered. This long-game allowed citizens of the free states to bide their time with the excrescence of slavery in order to avoid a war they could lose until at least there were enough free states to outnumber the slave power.

The Taney Court upset 70 years of sensitive inter-sectional political negotiations and compromises on this defining issue of whether the promises of the Declaration of Independence could eventually be realized in the United States. Taney redefined the Constitution as being a racist document, which imposed the false and most extreme pro-slavery views upon an ongoing political debate over the meaning of the then enormously respected Constitution.

Two years later in Abelman v Booth (1859), the Taney Court completed its two punch combination against the Constitution. Abelman was the first case where the Supreme Court claimed and exercised judicial supremacy over states in order to overturn a state Supreme Court decision refusing to enforce an Act of Congress as unconstitutional. The Wisconsin Supreme Court, after making a thorough analysis of the Fugitive Slave Act of 1850 and the cognate provision of the Constitution, reached the conclusion that the 1850 law violated the Constitution and that federal slavecatchers could not operate under that law in the state of Wisconsin. By asserting judicial supremacy over Wisconsin and the right of any state to make its own interpretation of the Constitution, Taney again asserts judicial supremacy to overturn 70 years of intricate sustained jousting with the slave states over this complicity with evil - as the free states increasingly came to see the fugitive slave issue.

These two cases in the final years before the Civil War attempted to impose the Court's pro-slavery opinions on the meaning of the Constitution with respect to the key issues upon which there had been intensive sectional debate from the very beginning: the authority of federal legislation to abolish slavery in the territories and in newly admitted states, and the federal authority to kidnap alleged fugitive slaves and to deny them due process. 

Strangely, the Civil War South has become identified with state's rights. But up to the outbreak of the Civil War, it was the slave power South through its control of the Supreme Court, the Presidency and the Senate that denied state's rights and sought to impose a centralized pro-slavery version of the Constitution on the states. It was the purist abolitionist William Lloyd Garrison who passionately advocated secession from the Union in those years, though periodic threats also emanated from southern politicians.

By seeking to terminate further political debate over the proper interpretation of the Constitution, the Supreme Court shaped an essential link in the chain of events leading to war. The side which could best convince its adherents that it was the proper defender of the Constitution gained moral advantage that directly yielded political, including potential military, power. Americans in the early 19th century loved their Constitution and were prepared to fight for it. In both sections lived people who put adherence to such factors as the Constitution above sectional views toward slavery. See David Williams, Bitterly Divided: The South's Inner Civil War (2010).

The Civil War was in effect fought over the proper meaning of the Constitution with regard to slavery, a debate which had been pursued before the war by such champions as Senators Salmon Chase and Charles Sumner in the North, and their counterparts in the South, such as Georgia Senator Robert Toombs who dared bring the South's constitutional arguments to Boston on January 24, 1856 and endured after the war as a leading advocate of Jim Crow.

Sen. Sumner, for example, strongly supported the Wisconsin Supreme Court's Abelmandecision in the Senate on February 23, 1855, reasoning with powerful, extended legal argument that the 1850 Act was "an assumption by Congress of power not delegated to it under the Constitution, and an infraction of rights secured to the States." In the case of Sumner, he was such an effective expounder of the proposition that the Constitution did not support slavery that the slave power attempted to assassinate him, days after his incendiary "Crime Against Kansas" Senate speech opposing the attempt to make Kansas a slave state by violence. Sumner's observation that events in Kansas had given rise to national "mutterings of civil war" became personal when Sumner himself was ambushed on the floor of the Senate on May 22, 1856.

The assassin was only thwarted by the intervention of witnesses after he continued beating an unconscious Sumner after delivering 30 blows with his gutta percha cane. A judiciary controlled by the slave power ignored the possible accomplices suspected by Sumner and others, P. A. Stovall, Robert Toombs, Statesman, Speaker, Soldier, Sage (1892) 142-43, and delivered a mere slap on the wrist to the would-be assassin. 

Southern apologists have explained away this assassination attempt as a manifestation of southern "honor," rather than as a deliberate tactic to win the essential constitutional argument by eliminating the lawyer-politician who was the most effective and uncompromising advocate for an anti-slavery Constitution. The assassination attempt did succeed in sidelining Sumner during the years of his recuperation. See W. H Hoffer, The Caning of Charles Sumner: Honor, Idealism and the Origins of the Civil War (2010); S. Puleo, The Caning: The Assault That Drove America to Civil War (2012).

The Supreme Court soon after heard reargument on and then decided Dred Scott, an appallingly written and reasoned, meanspirited decision that, in the absence of Sumner, drew the forceful and well-reasoned opposition of then-lawyer Abraham Lincoln. Lincoln directly challenged the Court's assertion of judicial supremacy in his debates with slave-power puppet Steven Douglas, whom Sumner suspected along with Toombs of complicity in his attempted assassination.

President T. Roosevelt explained that "Lincoln's … great public career began, and was throughout conditioned by, his insistence, in the Dred Scott case, upon the fact that the American people were the masters and not the servants of even the highest court in the land, and were thereby the final interpreters of the Constitution. If the courts have the final say so on all legislative acts, and if no appeal can lie from them to the people, then they are the irresponsible masters of the people." In Lincoln's words, if the Supreme Court has the last word on the Constitution, "the people will have ceased to be their own rulers."

These cases in which the slave power used its control over the Supreme Court to win what they could not get from Congress alone are the origins of the two-fold judicial supremacy doctrine that today claims for the Court authority to override both the separation of powers and also the dual sovereignty of federalism. Since Lincoln won the war over this question of judicial supremacy, while Taney died a widely reviled bankrupt insulted by Sumner and ignored by Lincoln, one would have expected the judicial supremacy ideology to have died with Taney during the Civil War. But the doctrine was revived with the end of reconstruction to convert the 14th Amendment to empower railroad and other robber barons during the long Gilded Age of the late 19th and early 20th century.

This historical context for the 15th Amendment's guarantee of the right to vote is important for understanding exactly how fundamentally the Roberts gang violated the Constitution in Shelby County v. Holder. The Court based its invalidation of a law that is specifically authorized by the 15th Amendment on the general "federalism" grounds that a state has power to regulate its own election under the 10th Amendment. In another case last year, such federalism concerns were presented to the Court as a reason to uphold Montana's right to enact its own election laws for the purpose of safeguarding the integrity of its elections and thus its republican sovereignty. According to C.J Roberts in Shelby County: "States retain sovereignty under the Constitution." But the Roberts 5 totally ignored those concerns when invoked to keep money out of politics and, without even the dignity of granting the sovereign state of Montana a hearing, summarily forced Montana to accept the corrupt regime for state elections mandated by the Roberts 5 inCitizens United for federal elections. If Citizens United is the Dred Scott of the overthrow of democracy by the money power, then Montana's case was its Abelman v Booth, an arrogant power grab, dismissing legitimate, constitutionally based federalism concerns such that now severely limits the country's options for recovering the Constitution from the money power. 

The Montana shows the Roberts 5's concern with federalism and state sovereignty in Shelby County to be opportunistic and shallow. In election matters, as Justice Ginsburg's dissent inShelby County points out, it is Congress that expressly possesses the power to enact legislation on the manner of holding federal elections and on enforcement of constitutional voting rights in all elections. Id. note 2. The Constitution gives the Court no role to play in these matters, whether in federal or state elections, even assigning in Article I, Sec. 5, the power to "judge" federal elections to Congress. This clause marks the only grant of judicial power to Congress, other than for impeachment trials where the Court accordingly concedes that it has no role to play. That the Constitution thus shows a wise intention to keep the judiciary out of elections has not been sufficient to keep the Roberts 5 from meddling in this legislative concern.

In the Montana case federalism and state sovereignty concerns combined with the elections clauses of the Constitution should have precluded any Supreme Court review of the Montana Supreme Court's decision. Unlike Shelby County, the Montana case was not decided under the Civil War Amendments (CWA). Within the ambit of their application to the abolition of slavery, enforcement of civil rights and safeguarding of voting rights, the CWA expressly abrogated states rights, or "federalism." This alteration of the Constitution's dual sovereignty template for these particular subjects became the legal expression of the justification for the enormous cost in blood and resources of the Civil War. The CWA once and for all terminated "federalism" on these subjects that were of such profound national concern as to caused the enormous tragedy of the continent's most deadly organized warfare.

More importantly, in formulating both the CWA as well as other election-related amendments Congress expressly retained for itself the power to enforce the amendments by enactment of necessary legislation.  Lincoln had won this battle over the pernicious Supreme Court claim to judicial supremacy. Congress had learned the lesson that Lincoln taught to keep the Court out of reconstruction by taking the full power unto itself to decide what was necessary to enforce the CWA rights without the interference of bogus constitutional objections coming from a biased and unelected Supreme Court. Justice Ginsburg quotes a scholar in pointing out that the remedy provided by the Civil War "amendments was expressly not left to the courts." The 15thAmendment resides at the very intersection of this intention to exclude the Court from CWA enforcement and the redoubled general intention similarly expressed in every election related amendment to reserve the power to enforce election rights to Congress, where that power had always resided.

Chief Justice Roberts' decision in Shelby County thus violates two fundamental constitutional principles in overturning a law Congress enacted pursuant to its CWA powers with respect to voting rights. First, it breaches the separation of powers principles embedded into those amendments when they were proposed by Congress and ratified, both in deliberate response to the misbegotten claims to judicial supremacy of the Taney Court as well as to the general dangers of an unelected and irresponsible judiciary taking control over elections, a danger long acknowledged by the Supreme Court in its self-abnegating "political question doctrine."

Second, the Roberts' decision attempts to undo the very outcome of the Civil War by reviving "federalism" and "sovereignty" concerns as a touchstone of validity on a subject matter where such concerns were expressly abrogated by the Constitution. The racial politics motivations of the Roberts 5 are clear because the Court paradoxically denied, only a year ago, in the Montana case, actual valid federalism concerns regarding state elections in a context where they had not been abolished, but rather supported by both Congress and the executive branch, and should therefore have been respected by the Supreme Court. The common feature of these doctrinally inconsistent decisions is that the Roberts 5's handling of the Montana case also served the interests of plutocrats in disenfranchising citizens from their right and power to deny a corrupted government "the consent of the governed" by means of fair and clean elections.

Beyond those two fundamental constitutional violations, Justice Ginsburg points out the failure of Chief Justice Roberts' majority decision to even state an objective standard to which it was holding Congress – that is, the law under which unelected judges presume to second guess the elected representatives of the people. Though the historical record would suggest that the Court has no proper role to play at all in this matter, history since that time has given the Court the minor role of determining whether what Congress has done in exercising its plenary CWA powers was, under the circumstances, "rational." C.J. Roberts rejects application of a standard, other than a highly subjective "sufficiently related to the problem" descriptor, which Roberts first rolled out in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. 193 (2009). Since Justice Ginsburg goes into great length with regard to the factual circumstances considered by Congress, and upon which the rationality of Congress' reauthorization of VRA preclearance could not remotely be questioned, C.J.Roberts ducks the facts by saying he is not even interested in this extensive record proving the rationality of Congress. This is further evidence that in this decision, the Roberts 5 were not performing a judicial process. C.J. Roberts' refusal to state an objective rule under which the Court is exercising authority, and then his rejection of the judicial task to assess the facts to which any such rule would apply, abandons use of the fundamental judicial tools which define the judicial process.

 Beyond those violations, Justice Ginsburg shows that since the reauthorization of VRA's preclearance authority would be uncontestably needed under any standard with respect, specifically, to the plaintiff Shelby County and to Alabama generally, due to their documented "sorry history" of violations, there was no basis for the Court to rule on the application of the preclearance requirements for other possible plaintiffs or contexts, which is what the Court did in effect. That is, if the Roberts 5 were acting within their judicial authority to decide actual cases of parties before them, to which they are limited by Article III, they would have no occasion to extend their inquiry generally to other parties and claims not before the court to determine some abstract potential inequality in the treatment of different states for VRA preclearance.

As a legislator, C.J. Roberts rules that he would prefer Congress to periodically redo its factual analysis of the need for requiring preclearance of states over the method that Congress did use. Congress' method for updating the geographical reach of preclearance prophylaxis was setting the baseline as those states that were proven discriminators before 1965, and then allowing bailout at their own initiative on the basis of keeping a clean record. Congress used something like probation for the serial violators of the 15th Amendment. The Court duly noted this built-in updating mechanism: "A covered jurisdiction could 'bailout' of coverage" if it had not discriminated against voters in the previous 10 years. But it ignored that method as satisfying any rational need for taking account of changes in need for preclearance over time.

The leading precedent overturned by the Roberts 5 had held: "After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims." This is what the bailout procedureIn any other case the choice between these two legislative approaches would not be a matter for a court to decide. They are different legislative choices which balance any number of known, unknown and unknowable factors and hunches all appropriate to the legislative process. But C.J Roberts picks out just those factors that lead to his preferred conclusion, primarily that the jurisdictions covered currently have more equal registration numbers than some uncovered jurisdictions.

 C.J. Roberts claims the power for the judiciary to repeal historic prophylactic legal reforms that grew out of extreme historic circumstances once those circumstances have ameliorated due to those very reforms.  As a politician, he understands that requiring the contemporary corrupt and dysfunctional Congress to act to preserve the reform on a partisan issue such as this will inevitably lead to stalemate and effective permanent repeal of the key judicially-invalidated Sec 4 provision that determines the geographical scope of the preclearance provision that has made the VRA so effective. Without Sec. 4, Sec. 5 preclearance has no geographical scope and is effectively repealed.

Justice Ginsburg labels as "hubris" the Court's venture into giving advisory opinions about the possible application of the law to parties not before the Court. Interestingly this is an approach that has been limited exclusively to First Amendment litigation on grounds of the general "chilling effects" on potential other speech and speakers not before the court. This technique of deciding cases of parties not before it was also used in Citizens United for justifying that advisory opinion on the reach of the concept that money is speech. There were actually no citizens before the court in Citizens United claiming that they wanted to hear more corporate political advertising - though that was the "right" which the Court purportedly protected in that case.

In Shelby County, the only parties before the Court could make no credible response to the fact that their own proven discriminatory conduct within the past 10 years justified the continued use of Congress' powers to require pre-authorization of changes in their election laws as it had since 1965. So the Court, as it did in Citizens United, argued that some other case not then before the Court, maybe Arizona or Alaska, would violate the Constitution because continued preclearance may theoretically not be currently justified there. But that is not how the judicial process works. Looking at the broad application of a policy to the nation as a whole is how the legislative process works. Moreover, as the leading precedent noted, it is an "acceptable legislative fashion" for a legislature to "chose to limit its attention to the geographic areas where immediate action seemed necessary." 

If the Constitution required Congress' different responses to comparable problems to be proportional to their relative seriousness, then the whole war on terrorism would be unconstitutional nearly 12 years after 9/11, unless it targeted falling furniture accidents withcomparable resources, as one comedian observed. The Courts do not have the constitutional authority to tell Congress how it must equalize its response to different problems or to repeal prophylactic responses no longer deemed necessary or up-to-date according to some judicially-selected metric.

The judicial role is limited to determining whether the party has raised a legitimate reason to preclude application of a law to itself because Congress could not have rationally deemed preclearance to be a relevant remedy for potential discrimination by that one party, Shelby County. Anything else lies beyond the judicial process in the realm of legislative power.

Roberts and his gang in this and other cases routinely invent whatever reasons and rules and processes they need to protect plutocrats from the law. In this case, their goal is clearly to revive Jim Crow suppression of the franchise of persons who would likely vote against Republicans, as Greg Palast contends. Unable to make any case that Congress' criteria for applying VRA preclearance to Shelby County election law changes is irrational or in any way questionable, the Roberts 5 premise for its decision was forced into irrationallity. C.J. Roberts reasoned that because the VRA has been demonstrably effective in thwarting attempts to suppress equal voting by citizens, its protections are no longer needed. This is, as Justice Ginsburg pointedly phrased it, "like throwing away your umbrella in a rainstorm because you are not getting wet."

The Court in Shelby County, as it did in Citizens United, and in a series of other cases, has blatantly violated the separation of powers by appointing itself a super-legislature on issues of the most profound importance to the nation. There is no call here, any more than there was needed in Citizens United and the numerous other cases where the Roberts 5 are using these same tactics, for proposing a futile constitutional amendment to change the Roberts 5's idiosyncratic, textually unsupported reading of the Constitution. The need is to force them to comply with the fundamental Constitutional principle of the separation of powers.

To extend Justice Ginsburg's apt umbrella metaphor, Roberts 5 justify their forays into legislating with excuses just as irrational as the simpleton who refuses to investigate the evidence all around of rain, refuses to accept the conventional test that rain is wet, and then throws away the umbrella as unnecessary while alleging those who would keep the umbrella to be irrational. Umbrellas are necessary, they say, only after you are already wet. If a legislature had made such a choice it would be irrationally ineffective in avoiding the rain of Jim Crow. But when the Court makes this choice, the judicial supremacy ideology strongly rejected by the great presidents Madison, Jefferson, Jackson, Lincoln and two Roosevelts elevates it to the final word on the subject by the American people. This turns the people who accept this ideology into the real fools.

These five do not care about determining the specific facts for the specific cases that judges are hired to deal with, nor what any court before them thought the Constitution requires. This case again changes the rules by overturning precedent just as the same five did in Citizens United.

These five create new bizarre, but transcendent, "constitutional" principles as may be needed to get their desired political results. Here it was the idea of "equality of States" which, as long understood, appropriately "applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared." South Carolina v. Katzenbach, 383 U. S. 301 328-39 (1966). In Citizens United,  it was the bizarre notion that unlimited political investments in the form of "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption."

The parallels with the non-judicial conduct in Citizens United by C.J. Roberts' Shelby Countyopinion are many. There is now a desperate need for Congress to finally make an effective response to the Supreme Court's serial constitutional violations, especially its violation of the separation of powers by grabbing and applying legislative power to political questions outside their judicial purview and unhinged from any accepted judicial process.

Perhaps this case that seeks something as profound as to undo the outcome of the Civil War and relegate many citizens primarily in the South back to second class Jim Crow status will be seen as so historically perverse and legally illegitimate as to jar Congress out of its torpor anduseless platitudes about constitutional amendments to take real action against the Roberts 5.

The public must demand that Congress use its Article III constitutional power to strip the Supreme court of appellate jurisdiction over any case arising under the Voting Rights Act that questions Congress's plenary authority under the 15th Amendment to guarantee the right to vote in federal and state elections without regard to any newly purported right to "equality of States." At the same time, Congress should strip the Supreme Court of jurisdiction over its "money is speech" decisions which similarly distort the First Amendment to disenfranchise the vast majority who cannot buy politicians and policy. These are closely related and overlapping issues that should be dealt with in an omnibus bill that strips this Court of as much of its judicial review powers as needed to contain the Roberts 5 within their proper judicial functions and especially to remove them from any further involvement with the inherently "political question" of elections. See Rachel E. Barkow, More supreme than court? The fall of the political question doctrine and the rise of judicial supremacy, 102 Colum. L. Rev. 237 (2002)

These 5 are inflicting potentially irremediable damage on the country in numerous areas of policy. If they fail to cooperate with this venerable limitation on their Article III powers, accepted by other Supreme Court decisions going all the way back to the early 19th century, impeachment and prosecution must be raised as appropriate remedies for judges who prove themselves to be the lawbreakers.

The Roberts 5's non-judicial process utilized for the purpose of denying voting rights already violates 18 USC. §241 which punishes "persons [who] conspire to ... oppress, ... any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States," (including equal access to state rights), if there is even peripheral -- as there clearly is in the Shelby County case – or even no state involvement. See United States v. Guest, 383 US 745, 782 (1966) ("§ 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendmentrights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.") 

Any immunities to which their judicial robes might entitle the offending justices should be stripped when, as in the Shelby County and Citizens United cases, they act outside the scope of their judicial authority by abandoning judicial processes in order to usurp legislative and supra-legislative powers. If current law is deemed to insufficiently place the Roberts 5 on notice that they have crossed the line to criminal conduct, then Congress should hold hearings on new legislation that would clearly distinguish judicial process from legislative process. Congress could create a new Article III tribunal, with no appeal to the Supreme Court to hear claims against Supreme Court justices who deny important constitutional rights by means of violating the separation of powers. This would give Congress a context within which to expose the Robert's 5's non-judicial, extra-legal bases for its decisions and to deconstruct those decisions into their operative political terms.

T. Roosevelt said during the late-Gilded Age Lochner era, a time like the pre-Civil War era and the current period when the Supreme Court inflicted enormous injury on the country by violating the Constitution in service of plutocrats: "when a judge decides a Constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it is wrong. … it is both absurd and undignified to make a fetish of a judge or anyone else."

Support that liberals lend to the judicial supremacy ideology in the current era is an absurd and undignified "fetish." The slippery slope that they fear could be dealt with by adopting T. Roosevelt and the Progressive Party's proposal of a century ago for allowing the people to vote in a "recall" election on issues such as 5-4 decisions that affect everyone, and on which the public generally thinks the Court got it all wrong. Congress would have the authority to conduct a referendum that it could declare either binding on or instructive to those voting for the law to determine whether Congress got the Constitution right, or whether these 5 judges who are all wet got it right. 

If the referendum results support congressional power, and the Court still insists on violating the publicly supported interpretation of the proper separation of powers, the consequences should include civil and criminal remedies, Article I, Sec. 3 impeachment by Congress, and executive removal for failure to maintain Article III, Sec. 1 "good Behaviour." At the current crisis point to which the Roberts 5 have brought the country since 2006, corrupting its politics, reviving Jim Crow, and much more, a new solution is required for the recurring problem of a politicized, anti-democratic judiciary that has plagued much of US History since Roger Taney and Dred Scott.

Such a reform could only be accomplished through a non-partisan single issue focus on the fundamental question of democratic elections.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Rob Hager

Rob Hager and James Marc Leas are lawyers active with Occupy Wall Street in their respective towns. Hager is an experienced public interest litigator while Leas specializes in patent law.


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