The Supreme Court's repeated Perpetuation of Systemic Racism

[NWRatCon]

The Supreme Court's recent Brnovich decision is the latest iteration of a pattern of the Supreme Court legitimating systemic racism in the law, and under the Constitution. In the antebellum period, this pattern was epitomized by the infamous Dred Scott decision in 1857.

In March 1857, the Supreme Court issued a 7–2 decision against Dred Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that people of African descent "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States". Taney supported his ruling with an extended survey of American state and local laws from the time of the Constitution's drafting in 1787 that purported to show that a "perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery".

Taney's decision is widely regarded as the worst decision in Supreme Court history. It was an immediate precursor to the Civil War, and impetus for both the Emancipation Proclamation, and the 13-15th Amendments.

In the aftermath of the Civil War, however, there was an intense and sustained effort to undo those amendments, which resulted in the Civil Rights cases

five legal cases that the U.S. Supreme Court consolidated (because of their similarity) into a single ruling on October 15, 1883, in which the court declared the Civil Rights Act of 1875 to be unconstitutional and thus spurred Jim Crow laws that codified the previously private, informal, and local practice of racial segregation in the United States. In an 8–1 decision, the landmark ruling struck down the critical provision in the Civil Rights Act prohibiting racial discrimination in public places (such as hotels, restaurants, theatres, and railroads), what would later be called “public accommodations.” The ruling barred Congress from remedying racial segregation and in effect legalized the notion of “separate but equal” (though the ruling did not use this language) that would predominate in American society until the Civil Rights Act of 1964.

And Plessey v. Ferguson. That tradition of awfulness is carried forward by the Roberts Court in its Shelby and Brnovich decisions, and on similar bases.

 

[Napoleon]

The law: Vote in your own district.
Progressives: ThAtS rAcIsT?!
Supreme Court: No it isn’t.
Progressives:

 

[bomberfox]

let the ideological forebears of the planter class take over and this is what ya get

 

[NWRatCon]

What is genuinely shocking is the direct importation of justification from those decisions.

 

[NWRatCon]

Bump

 

[highroller]

Republicans would applaud today as the “Scott Dred decision” was an “originalist” interpretation.

 

[Glitch]

The Supreme Court's recent Brnovich decision is the latest iteration of a pattern of the Supreme Court legitimating systemic racism in the law, and under the Constitution. In the antebellum period, this pattern was epitomized by the infamous Dred Scott decision in 1857.

Taney's decision is widely regarded as the worst decision in Supreme Court history. It was an immediate precursor to the Civil War, and impetus for both the Emancipation Proclamation, and the 13-15th Amendments.

That is a nice spin, but not exactly true. Justice Taney was correct. The US Constitution excluded slaves from being considered as 'citizens' when he said blacks "are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States."

However, the Bill of Rights does not limit those rights only to "citizens." The First, Second, Fourth and Ninth Amendments all specifically refer to the rights of "the people," not just citizens alone.

One does not need to be a US citizen to have their right to free speech and religious belief protected.

One does not need to be a US citizen to legally buy and/or carry a firearm in the US. The Second Amendment prohibited the federal government (the Fourteenth Amendment didn't exist before 1867, so the States were excluded from abiding by the Bill of Rights) from banning firearms to anyone within the jurisdiction of the US Constitution, including slaves. It was only State laws that prohibited slaves, and anyone else they didn't want, from keeping and bearing arms.

In the aftermath of the Civil War, however, there was an intense and sustained effort to undo those amendments, which resulted in the Civil Rights cases

And Plessey v. Ferguson. That tradition of awfulness is carried forward by the Roberts Court in its Shelby and Brnovich decisions, and on similar bases.

The Supreme Court was correct in part. The Civil Rights Act of 1875 violated the Tenth Amendment. Congress has no jurisdiction over public transportation within each State, unless it crosses State or national borders. However, the Supreme Court was very much mistaken about segregation not being a violation of the Equal Protection Clause of the Fourteenth Amendment. Any law that either harms or benefits one group of people over another group of people, for any reason, is a violation of the Equal Protection Clause.

It wouldn't be the first, or last time the Supreme Court has screwed up either. Personally, I consider their entire selective incorporation to be one massive screw-up by the Supreme Court. All the Bill of Rights should have immediately been applied to all the States as soon as the Fourteenth Amendment was ratified. It took the Supreme Court 152 years to finally get around to incorporating the Eighth Amendment and applying it to the States. And we are still waiting for the rest of the Fifth Amendment to be applied to the States.

The States were not held accountable for any violation of the Bill of Rights until Gitlow v. New York, 268 U.S. 652 (1925) when the Supreme Court finally got around to applying part of the First Amendment to the States.

The Supreme Court decision in Brnovich, Attorney General of Arizona, et. al. v. Democratic National Committee, et. al., decided July 1, 2021 was a good one, and will go along way in helping to ensure election integrity is all 50 States, not just Arizona.

 

[Terryj]

I don't see how Arizona's law to prevent counting of ballots cast in the wrong precinct or preventing ballot harvesting is denying anyone of the right to vote. There are a number of states that have ballot harvesting laws and most states don't allow you to vote outside your registered precinct, to allow both of these is asking for voter fraud.

 

[mrjurrs]

The law: Vote in your own district.
Progressives: ThAtS rAcIsT?!
Supreme Court: No it isn’t.
Progressives:

What is the government's interest in forcing people to vote in a specific precinct?

 

[Napoleon]

What is the government's interest in forcing people to vote in a specific precinct?

We have local option elections in Ohio. In a nutshell, it means things are on the ballot in one precinct that aren’t in others.

 

[bomberfox]

Republicans would applaud today as the “Scott Dred decision” was an “originalist” interpretation.

Wait til you get a load of Buck v Bell. SCOTUS defended sterilizing a rape victim determined by outrageously biased judges as deficient and declared without really any allowance for Buck to form a defense.

The nazis used Buck v Bell at the Nuremberg trials to defend their programs. I consider Oliver Wendel Holmes to be among the most monstrous judges to hold the bench.

 

[NWRatCon]

I don't see how Arizona's law to prevent counting of ballots cast in the wrong precinct or preventing ballot harvesting is denying anyone of the right to vote. There are a number of states that have ballot harvesting laws and most states don't allow you to vote outside your registered precinct, to allow both of these is asking for voter fraud.

There is a fact free post. <sigh> I'd suggest you read the dissent, as it lays out in detail exactly how and why you are wrong, but I'll give you the gist:

Much of Arizona is Reservation land. Have you ever been there? Huge tracts of land, spotty roadways, lack of motor vehicles, sparse postal service, lack of even recognized addresses. Traditionally, Native Americans have low vote participation because of these barriers. More recently, methods have been established to overcome them. Neutral election groups like League of Women Voters would gather votes from shut-ins and those without transportation and deliver them to poling places. There's never been a problem with this. But, the Arizona GOP realized most Reservation residents were voting Democratic, so they did something about that - prohibited ballot collection, this dosing the native vote.

Another favored Republican method is frequently changing precincts and voting locations. This happens more often in urban than rural areas. This is not a coincidence, as urban voters skew heavily Democrat. There is no justification for prohibiting out-of-precinct voting for other than very local matters. In nearly every other jurisdiction a voter can cast a provisional ballot for national and State candidates and measures. Not in Arizona, they simply throw out these votes. Wonder why?

 

[Glitch]

I don't see how Arizona's law to prevent counting of ballots cast in the wrong precinct or preventing ballot harvesting is denying anyone of the right to vote. There are a number of states that have ballot harvesting laws and most states don't allow you to vote outside your registered precinct, to allow both of these is asking for voter fraud.

In Alaska, if you vote outside of your registered district you are provided with a "provisional" ballot. Provisional ballots are only counted if the total registered ballots for the candidates are within 1%. Which means that the majority of the time provisional ballots are not counted. They still exercised their right to vote, but since they did so outside of their registered voting district their vote most likely will not be counted.

Unfortunately, Alaska has a big problem with government-instituted election fraud. Even though it is in direct violation of State election laws, the city of Anchorage mailed out ballots, unrequested by any voter. Furthermore, they counted ballots without addresses or signatures as valid votes.

It is not the individual voter who commits election fraud, although that does happen very rarely, it is the government itself committing the election fraud on a massive scale. This has been happening in every election for decades. As demonstrated by Jill Stein's Michigan's recount in 2016.

Michigan recount reveals error, but not the one Jill Stein wanted

WASHINGTON — Green Party nominee Jill Stein’s presidential vote recount in Michigan may have turned up massive voter irregularities — in the Democratic stronghold of Detroit. Now it’s R…

nypost.com

As long as city governments, like Anchorage, can willfully violate Alaska election law with impunity there will never been free or fair elections in Alaska.

 

[cpwill]

Getting rid of ballot harvesting and in-precinct voting are such right wing, racist, ideas that ... Jimmy Carter recommended them....

 

[NWRatCon]

Getting rid of ballot harvesting and in-precinct voting are such right wing, racist, ideas that ... Jimmy Carter recommended them....

How and why are very relevant issues. Georgia has a bad history with them, Arizona does not. In the absence of any voting irregularities, what prompted the change in the statutes? (We actually know that answer.)

 

[cpwill]

How and why are very relevant issues. Georgia has a bad history with them, Arizona does not. In the absence of any voting irregularities, what prompted the change in the statutes? (We actually know that answer.)

It was a universal recommendation, not specific to Georgia.

 

[NWRatCon]

It was a universal recommendation, not specific to Georgia.

The point, really is, what is the point? What do they accomplish and why are they imposed? We know the answer, don't we?

 

[cpwill]

The point, really is, what is the point? What do they accomplish and why are they imposed? We know the answer, don't we?

If you want to say that the Arizona GOP is full of hacks, that seems more than plausible. Projected evil intent, however, does not change the actual nature of things themselves.

 

[NWRatCon]

If you want to say that the Arizona GOP is full of hacks, that seems more than plausible. Projected evil intent, however, does not change the actual nature of things themselves.

Actual evil intent, though, is relevant. I created a venn diagram on the topic, but need to reformat it. The point of this thread, though, is that the current majority is following the play book of the worst courts in US history and aren't embarrassed to do so.

 

[cpwill]

Actual evil intent, though, is relevant.

Your projection of evil intent does not change the thing itself, and, interestingly enough, the Court looked into the question of intent, and found that the motivating animus was the desire to ensure secure and trustworthy elections.

Now, was heightened concern about the security of elections an outgrowth of a bunch of kookery and lies? Probably. But police reform can be a good in and of itself, and doesn't have to be based on evil intent just because a proponent believes in the Hands Up Don't Shoot myth. So too, here.

 

[NWRatCon]

Your projection of evil intent does not change the thing itself, and, interestingly enough, the Court looked into the question of intent, and found that the motivating animus was the desire to ensure secure and trustworthy elections.

Now, was heightened concern about the security of elections an outgrowth of a bunch of kookery and lies? Probably. But police reform can be a good in and of itself, and doesn't have to be based on evil intent just because a proponent believes in the Hands Up Don't Shoot myth. So too, here.

You do realize the impetus for/subject of this thread is the outrageous decision in Brnovich, right? The whole point is the Court's endorsement of pretext to perpetuate the obvious racial animus that motivates these laws. It is literally the same methodology that excused Jim Crow laws and segregation.

I appreciate the acknowledgement of the "kookery and lies", but that really is the problem - excusing kookery and lies as justification for discriminatory laws. That a blind squirrel may occasionally find a nut does not excuse deliberately blinding all the squirrels.

In a normal world not infested with rampant partisanship, a Supreme Court would apply at least a "rational basis" test for such an enactment. Alito has eliminated even this for an "any excuse will do" standard (and even suggests a few such excuses). That is not even close to normal. It's nearly unprecedented - except for the abhorrent precedents I've noted. Is that really the nation you want us to become? Is that really how you want courts to behave?

That's not how a rational, honest court is supposed to behave. The standard has always been that legislation 1) be for a lawful purpose, 2) that it addresses a real need, 3) that the legislation affects that purpose, and 4) that, when a fundamental right is involved, it is the least intrusive method to achieve that purpose. As you yourself acknowledge this clearly doesn't meet that standard. So Alito changed the standard to accomplish his own purpose. That is a very, very dangerous approach, one which leads to the elimination of the rule of law, and ultimately, autocracy.

 

[NWRatCon]

Your projection of evil intent does not change the thing itself,

Actually, "evil intent" is immaterial to the question. The real question is, "does this enactment have a disparate impact on a fundamental right?" If it does, it doesn't matter why it was enacted. The fact of the impact, as detailed in the dissent, is normally all that is required to strike it down (under strict scrutiny) - unless there is a compelling state interest that overrides that impact. Here there is no compelling state interest that is addressed by the enactment, and both you and Alito have acknowledged that. On the scales of justice, that means normally this is a slam-dunk. Alito has simply disconnected the scales entirely to avoid that result.

 

[cpwill]

Actual evil intent, though, is relevant.

Actually, "evil intent" is immaterial

......maybe you need to sit and think through where you come down on this?

 

[NWRatCon]

......maybe you need to sit and think through where you come down on this?

LOL - or maybe you need to apply a little thought to what I actually posted. I know you to be better than that, so I'm surprised at the lack of care in consideration of the subject matter. As I quite clearly and explicitly pointed out, there are two different issues: OVERT racism, and SYSTEMIC racism. They are both social problems. I don't think the first one needs much elucidation, as it is readily apparent (even here on the board).

CRT deals with the latter - the kinds of race-disparate results that are not necessarily intentional. (It would be nice for some here to acknowledge what CRT actually is so that we don't have to keep haring off into la-la land and false expectations based upon false constructions. You know what they are, so.... ) But that analysis is not actually required to reach the correct result in this case.

In the particular case of the particular enactments in Arizona, the evil intent is apparent in the lead up to them. That this is not obvious to anyone applying a modicum of common sense is also a social problem. The reality of the disparate impact was also readily apparent to Justice Alito - so that he actually had to address it. He disregarded it, of course, because, well, it was inconvenient to his purpose. But the bottom line is this: discriminatory intent is present in the record, as is disparate impact. Either of those is sufficient.

 

[mrjurrs]

We have local option elections in Ohio. In a nutshell, it means things are on the ballot in one precinct that aren’t in others.