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The “Diseased Root” of Today’s Supreme Court Majority – Dionne Award

July 21, 2013

The Dionne Award (named for Washington Post columnist E. J. Dionne) is presented at the whim of this blog to a “habitually even-tempered and fair-minded commentator for excellence in expressing moral outrage”.  With the hope that his mind and body stay as sharp as his pen, today’s Dionne Award goes to John Paul Stevens.

JohnPaulStevensNominated to the 7th Circuit Court of Appeals bench in 1970 by President Richard Nixon, elevated to the Supreme Court in 1975 under President Gerald Ford, and a lifelong self-described “judicial conservative”, Chicago native and successful antitrust litigator John Paul Stevens doesn’t fit the stereotype of a coastal liberal intellectual elitist who’d find himself comfortable writing regularly for the New York Review of Books.

However, since his retirement from the Supreme Court in 2010 (after serving longer than any justice except William O. Douglas and Stephen Johnson Feld), the 93-year old Stevens has written reviews for the NYRB every six months or so.  His piece in the August 15th issue, “The Court & the Right to Vote: A Dissent“, is—in its own polite and carefully worded way—as scathing a denunciation of the Court’s current conservative majority as there is.

Stevens uses his review of Gary May’s fine new book, Bending Toward Justice: The Voting Rights Act & the Transformation of American Democracy, as a vantage point from which to eviscerate Chief Justice John Roberts’ majority opinion overturning section 4 of the Voting Rights Act last month in Shelby County v. Holder:

The Court’s heavy reliance on the importance of a “fundamental principle of equal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted “three fifths” of a state’s slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College. That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states.

The fact that this “slave bonus” created a basic inequality between the slave states and the free states has often been overlooked, as has its far-reaching impact. In 1800, for example, that bonus determined the outcome of the presidential election since it then gave the southern states an extra nine or ten votes in the Electoral College, and Thomas Jefferson prevailed over John Adams by only eight electoral votes. Because of the slave bonus, Adams served only one term as president.

Displaying the kind of deftness, aim and control any pool shark would envy, Stevens ends by using Justice Antonin Scalia’s words to shame Roberts and knock both sitting justices off the table (metaphorically speaking):

[Roberts’] unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice’s opinion. It struck me as even more questionable when I read Justice Scalia’s dissent in the Defense of Marriage Act case, which was decided the next day. In his dissent, Justice Scalia contended that the Court erred in its antecedent decision that it had jurisdiction to reach the merits of the constitutional challenge to DOMA. The “diseased root” that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case.* He wrote:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The fact that a lifelong Republican and judicial conservative writes in such terms about the Supreme Court’s Republican majority is a sign of how extreme today’s Republican party has become.  Here’s hoping that young and middle-aged “small c” conservative Republicans will draw inspiration from the example of the nonagenarian Stevens, and break—ever more clearly and decisively—with the extremists who currently control their party.

*emphasis added

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