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Roberts Court just can’t get away from its activist ways



Published: Fri, June 28, 2013 @ 12:00 a.m.

In three landmark decisions re- leased by the Supreme Court of the United States before summer adjournment, the votes were narrow and, depending on the case, involved differing alliances. But one thing was constant, the Roberts Court continues to be an activist court that appears not only willing but eager to substitute its judgment for that of the Legislature and precedent.

The most dramatic of the cases was the court’s 5-4 vote that gutted the Voting Rights Act, which was passed in 1965, not long after civil rights workers were murdered for attempting to register black voters in the South.

What has become the law’s most controversial provision — a requirement that certain states or parts of states must ask for Justice Department review before tampering with laws that affect voter access — was not limited to the South. It applied to all of Alabama, Georgia, South Carolina, Texas, Alaska, Arizona, Louisiana, Mississippi and Virginia, and parts of California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota.

The wrong message

By finding that preclearance requirement unconstitutional, the court sent a message to states and areas that have a history of voter suppression that they are now trustworthy. That’s a happy thought, but one that is open to challenge, and Justice Ruth Bader Ginsburg did so in what should have been convincing fashion. Her dissent cited eight examples of relatively recent race-based voter discrimination. One was that of Kilmichael, Miss., where the five council members and the mayor — all white — became alarmed at an unusually high number of announced black candidates and so cancelled the election. Under the Voting Rights Act, the Department of Justice stepped in. The election was held, and the town elected its first black mayor and three black councilmen.

For Chief Justice John Roberts and his four conservative colleagues to pretend that we live in a post racial America is either naive or dishonest — and it’s hard to believe that Supreme Court justices got where they are being naive.

We had hoped that Roberts, at least, would distance himself from the outrageous comment made by Justice Antonin Scalia during oral arguments on the Voting Rights case in February. It was then that Scalia suggested that because the law has gained strong support in Congress over the years, Congress could no longer be trusted. The support he said is “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”

The Voting Rights Act was passed by Congress by a vote of 77–19 in the Senate and 333–85 in the House. It has been periodically renewed, most recently in 2006 by a vote of 98-0 in the Senate and 390-33 in the House. In Scalia’s warped view — a view now validated by his conservative colleagues — when Congress acts with near unanimity, it is a signal that the Supreme Court must substitute its wisdom for that of the House and Senate. And cast precedent to the wind in the process.

Other cases

To a lesser but no less noteworthy extent, the Court was also willing to substitute its view on the legitimacy of gay marriage over that of the Congress and it sent a strong message that it is prepared to further restrict the use of race as a factor in college admissions if the appeals court to which it remanded a case for rehearing doesn’t get the message.

People on both sides of the political fence found things to applaud and things to condemn in the decisions released during the final days of the term.

But the continuing trend that Roberts is taking that substitute’s the court’s opinion — often on narrow votes — over both legislative action and the court’s own precedent is troubling. One might even say alarming.

Looking at the new term

One of the last decisions the court made was to accept a case involving the practice under which a president makes recess appointments to the executive or judicial branches of government.

Every president since George Washington has made recess appointments, although the practices has become more common since World War II. President Dwight Eisenhower appointed William J. Brennan to the Supreme Court during a recess. According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H.W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of the beginning of this year President Barack Obama had made 32 recess appointments.

This case, which challenges Obama’s appointments to the National Labor Relations Board, would seem to have the potential of exposing the Roberts Court as not only one of the most activist courts in history, but one of the most partisan. Or of disproving its harshest critics.

NLRB v. Noel Canning sounds innocuous enough, but it will be a case well worth watching.


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