At least section Five.
I am talking a lot more Supreme Court lately. Part of that is because the Court has some very interesting cases this term.
The Court had a biggie the other day that affects a certain section of the country I live in. The case is Northwest Austin Municipal Utility District No. 1 v. Holder which looked at section Five of the voting rights act passed way back in the 1960's.
I will make a Catholic argument against Section 5 in this post. But first an overview.
A good overview of this case is done by the more liberal court reporter Dahlia Lithwick at Slate. See How Can Rights Feel So Wrong?
I generally like Lithwick's writing because she does a good service of making courtspeak and the issues understandable to the Joe on the street. However as a person of a more liberal bent she lets her bias really come in. I recommend the article though. There are links to the transcript and more importantly the recording of the oral arguments which is fascinating.
A few words on bias in her article. Lithwick has a flaw that keeps coming up again and gain. If the court looks like they are about to overturn a law she likes she goes into the "Conservative Justices are Hypocrites mode" .They are LEGISLATING FROM THE BENCH.
Of course the fact that conservative justices just don't rubber stamp laws that Congress passes is no new thing. It is not legislating from the Bench and I suspect she knows better. The other flaw she avoids talking about what is really in the background here. That is the special alliance between Republicans and black democrat politicians that in the end might create more mischief than anything else.
What Lithwick also does not talk about in her article is the first 20 minutes or so of the oral arguments. Basically Justice Ginsburg and Justice Souter are smelling what is in the wind. That is Section 5 of the voting rights act might be in serious trouble. Basically they are yelling WHY ARE YOU HERE!!! and GET THE HELL OUT!!! to the counsel that has problems with section five. They do this in nice legal ways though. That is through the issue of Standing. It might seem dry all that talk of statutes and what is a political subdivision blah blah but that is what is going on. It is apparent Ginsburg and Souter want this case to go away. They smell five votes against them in other words.
The standing arguments are weak and we quickly get to the meat of the issue.
That is why are states of basically the old confederacy treated differently than the rest of the nation. Alito throws a ton of cold water on Section 5 fans when he points out that apparent problems of discrimination as to voting are far worse in places outside the south. The Chief Justice ask point blank do you think Southerners are more racist than Yankees!! Fun stuff.
However Scalia get to the real point. That this is all a sham. The reauthorization of the voting rights act often gets huge Republican support. Why?
Well basically it is what Lithwick is loathed to mentioned. That is there an alliance between black democrat politicians and Republicans. Republicans love black minority/majority districts. It makes their districts less black and democratic and black politicians love it for obvious reason. WIN WIN. Section 5 has basically become the incumbent reelection act for both parties in the south.
In the perfect world there would be a friend of the court brief by white southern democrats and more important blacks outside these districts entitled EXCUSE ME WE ARE GETTING SCREWED. But there appears a agreement (outside Scalia that keeps bringing this up) to not mention that.
In the end itcomes down to Justice Kennedy who is for all purposes is one of the most important and powerful man in the United States. Both conservatives and liberals on the Bench and by Counsel must spend considerable amounts of time wooing him.
Sadly for the advocates of Section Five he appears not to be impressed, He seems concerned about three things
1. When if ever will this "temporary" measure go away
2. How is the fair that Southern States and their subdivisions have to spend countless sums of money complying with this decree
and
(3) why in 2009 is Alabama treated differently than lets say Ohio.
Reading the tea leaves I don't think the more liberal advocates answered his question.
In the end it is time for section five to go away. It creates more evil than it tries to eliminate. After living under this regime I must say it violates a ton of Catholic principles.
It comes down to issue of race and the Catholic principle of subsidiarity. After seeing this up close and personal for all my life we have the following problems
1. It makes the problems of racism worse by making race problems worse
2 Minority/majority districts that get special protection under section Five actually in the real world disenfranchise the majority of minority voters (outside the Black districts) of real political power in these affected States and their political subdivisions
3. That Section 5 has retarded any effort at any two party system in the minority community
4. That real interracial coalition building is diminished and thus various evils result from that
5. That large segments both white and black voters in districts surrounding minority.majority districts are put at a real disadvantage as they are put in districts that make no sense. This largely means rural voters get screwed.
It is time for Section five to go away. Hopefully Kennedy will go with his apparent gut on this.
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