Plutocrats vs. Public: Judicial Over-Reach Threatens Overturning Civil Rights


Right-wing plutocrats have succeeding in destabilizing the constitutional checks and balances of the U.S. political system. Their bankrolling of conservative think-tanks and fake grassroots movements like the Tea Party has shifted political discourse far to the right and has alienated Washington politics from ordinary Americans.

Libertarian Rand Paul’s filibuster of John Brennan’s appointment as CIA chief, opposing the government’s justification of drone warfare, resonated with sections of the public already unnerved by the apparent removal of limits to government power. It also opened up a fissure within the Republican party between Paul’s right-wing constituency and hawks like McCain. Exacerbating this fracture is the tension between Tea Partiers and establishment Republicans who are concerned that their party’s right-wing shift will result in electoral defeats in the near future.

These Republicans fear being linked to austerity policies enforced through the Congressional stalemate over increasing the national debt, but are committed politically to opposing any compromise that includes tax increases on the rich. On the other hand, while Obama is willing (and has proposed) to make cuts in Social Security and Medicare, he cannot agree to cuts alone without at least token tax increases or he will lose his Democratic base.

As Washington Post correspondent Greg Sargent commented: “From the point of view of Democrats, the sequester cuts are preferable to replacing them with entitlement cuts. There is no imaginable scenario under which Dems would agree to replace the sequester only with entitlement cuts. Such a thing could never be sold to rank and file Democratic officials, let alone to the base.”

While Congress is deadlocked, the other branches of government are freed from restraints by elected representatives. This has widened the political space for leading conservative operatives and funders to step up legal attacks on constitutional protections and get support from the judiciary.

The US Supreme Court last week considered a challenge to the Voting Rights Act, a landmark achievement of the Civil Rights movement, which in a supreme irony the court heard on the same day and only a few yards away from where Obama was unveiling a statue of Rosa Parks.

The importance of the section of the law being challenged, Section 5, is that it puts the onus on the states to prove they are not discriminating by race, rather than on the victims who are unlikely to have the funds for costly legal proceedings. The Act specifically singles out nine southern states and parts of seven others to submit any changes in local voting rules to the Justice Department for prior review, and was most recently renewed in 2006 after months of deliberations and thousands of pages of testimony proved that the covered jurisdictions were still enacting discriminatory rules. The Senate confirmed it by 98 to 0; the House, 390 to 33.

Why is this bipartisan consensus being questioned now? According to Ari Berman, writing in The Nation, “The current campaign against the [Voting Rights Act] is the result of three key factors: a whiter, more Southern, more conservative GOP that has responded to demographic change by trying to suppress an increasingly diverse electorate; a twenty-five-year effort to gut the VRA by conservative intellectuals, who in recent years have received millions of dollars from top right-wing funders, including Charles Koch; and a reactionary Supreme Court that does not support remedies to racial discrimination.”

The challenge was mounted by Shelby County, a white-flight suburb of Birmingham, Alabama, but it was recruited to the lawsuit by a conservative activist and ex-stockbroker, Ed Blum, who has spent much of his life fighting the Act. He has been able to obtain funding for his campaign from wealthy conservative backers through Donors Trust, a non-profit which does not have to disclose its sources.

In oral argument, Scalia picked up the Republican idea that the US had moved into a post-racial period in which the Act was irrelevant and ran with it. In a deliberately provocative statement, he described the Act as a “racial entitlement” which society could not alter through the normal political process. “This is not the kind of a question you can leave to Congress,” he asserted, implying that members of Congress only voted for it because they wanted to be reelected.

More dangerous than Scalia’s open contempt for democratic institutions is the fact that the other conservative justices appeared to be less interested in people’s voting rights than in the rights of the states to define voting rules. They suggested that Section 5 of the Act was overly targeted at places where discrimination had been reduced and could be adequately replaced by other sections of the law. Kennedy, usually a swing vote, seems to have taken this position and in the past has described Alabama and other states as “independent sovereign” entities.

While Justice Sotomayor indirectly responded to Scalia,  mounting a strong defense of the Act in her questioning of the Shelby County lawyers, social realities did not penetrate far into the insularity of the court. As Berman blogged: ”The justices did not hear, for example, that six of the nine fully covered states under Section 5 passed new voting restrictions since 2010, including voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), limits on early voting (Georgia) and restrictions on voter registration (Alabama and Texas), compared to only one-third of noncovered jurisdictions during the same period.”

Although oral arguments are not always a reliable guide to how justices will vote, their conservative inclinations are displayed in the fact that the majority rejected an appeal by the ACLU to even consider a challenge to the constitutionality of the government’s claim for unchecked power to monitor international phone calls and emails. They accepted the administration’s position that the plaintiffs lacked “standing” to even allow their case to be tested in court, since they couldn’t prove they had been targets of the program – because the targets are secret!

Lower courts have also been judicially active. Three Republican-appointed judges on the DC circuit issued a ruling in January significantly narrowing presidential powers to make recess appointments. This was specifically aimed at the National Labor Relations Board, making Obama’s appointment of three NLRB members in 2012 illegal, and strengthening employers who break the law by firing workers for joining unions. Eventually, this issue may also make it to the Supreme Court.

The gulf between the right-wing judiciary and the social movement that reelected Obama is palpable. Judicial overreach is increasing the divide between society and state, delegitimizing the state and preventing it assuming a mediating role. As the sequester bites on the poor and middle class, Obama will have to struggle politically to contain resistance while still satisfying the requirements of rationalizing state power.

More significant are signs of splits within the state itself. This is why whistleblowers like Bradley Manning are being so zealously prosecuted, and why an individual like ex-LA cop Christopher Dorner was hysterically man-hunted. These cases evoke the ruling elite’s fear of the disintegration of state forces when faced with mass opposition to impoverishment and the reemergence of protests like the Occupy movement.

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Filed under Neoliberalism, Obama, occupy wall street, political analysis, Republicans

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