For decades—at least half a century—we have been hearing about “activist (meaning liberal) judges” making judge-made law. The mantra of the conservatives who protested this supposed phenomenon wanted legislatures to legislate and judges to judge. Indeed when Samuel Alito and John Roberts were appointed to the Supreme Court more than 15 years ago, Roberts proclaimed that the job of a Supreme Court justice was to be like a baseball umpire, calling balls and strikes. It all sounded so mechanical—look at the Constitution, look at the law—over the plate and between the shoulder and the knees, it was a strike. Otherwise, a ball. No judge-made law here. Just call ’em as he sees ’em.
Back in 1965, Congress enacted the Voting Rights Act. The clear intent of the law was to prohibit state and local governments from enacting laws or instituting regulations that would inhibit the right of citizens to vote, especially when those laws and regulations were aimed at a particular ethnic or other group. The Voting Rights Act was expansive in its intent, aimed at facilitating rather than inhibiting the franchise—as the name of law suggested.
In 2013, the Supreme Court’s conservative majority struck down an important part of the Voting Rights Act (which had been renewed in 2006), on the grounds that the conditions that gave rise to that part of the law no longer existed because the Act had been so successful. The 2013 opinion effectively re-opened the door for states that had been discriminating before 1965 to see if they could get away with it again and for other states as well, if they were so inclined. In its ruling, the Court noted that it was leaving in place another section of the Act, Section 2, that permitted citizens to bring suit to challenge state laws they considered to be discriminatory.
On June 30, however, the Court—Justice Samuel Alito writing for himself and five other members—inserted five “guideposts” to be considered by courts in judging whether or not a provision was permitted under the Voting Rights Act. These “guideposts” were not part of the original Voting Rights Act or any subsequent version of it. They were a construct created by Alito in ruling that the provisions of the Arizona state law limiting voting practices were legal under the Act. One might characterize these guideposts as “judge-made law”.
In a vigorous dissent, Justice Elena Kagan wrote that the Court’s ruling violated the spirit and substance of the Voting Rights Act. “What is tragic here,” she wrote, “is that the court has (yet again) rewritten — in order to weaken — a statute that stands as a monument to America’s greatness and protects against its basest impulses. What is tragic is that the court has damaged a statute designed to bring about ‘the end of discrimination in voting.’”
The Court’s ruling isn’t an isolated incident. As noted here previously, Republican-controlled state legislatures across the country are enacting laws that have the practical effect of making it more difficult for persons of color and the poor to vote. These laws are being enacted in the wake of the 2020 election which saw a higher percentage of voter participation—62 percent—than in any American election since 1960. The Republican appointed federal election czar proclaimed it the safest election in American history.
It doesn’t stop there. A congressional attempt to head off these anti-democratic efforts has stalled in the Senate where Minority Leader Mitch McConnell and his Republican colleagues have refused to allow the Senate to even debate a voting rights measure passed by the House of Representatives. At the same time, in what can only be described as a cynical, Bread and Circuses act, the House and the Senate by overwhelming majorities approved making June 19—Juneteenth—a national holiday celebrating the end of slavery in 1865. When it comes to taking real, meaningful action to promote and protect the voting rights of a minority still experiencing systemic racism, congressional Republicans are missing in action.
It doesn’t end there, however. Shortly after Barack Obama became President, McConnell famously proclaimed that his goal was to make Obama a one-term President. There was a time in what now seems like a long-ago past, when the two parties looked for ways to resolve their disagreements, splitting the difference where necessary to produce half a loaf if a full loaf wasn’t possible. Those bygone days began to disappear in the 1990s, with the election of Bill Clinton and a decision by House and Senate Republicans to oppose to a person Clinton’s major proposals.
Republicans now apparently aren’t satisfied shooting for a single term for a Democratic President. Senator John Barrasso of Wyoming cleverly amended McConnell’s declaration to say that now the goal of his party is to make President Biden a “half term President”. It’s difficult to contemplate the vacuity, empty-headedness and intellectual desolation behind that remark. Bridges are collapsing; our roads are crumbling; forests are burning; climate change is bringing record heat and rising seas, and a significant part of our population continues to suffer from racism. The party that produced Lincoln, Teddy Roosevelt, Eisenhower and even Reagan, however, is now reduced to being the party that has nothing more to say than “no”. But we do have a new national holiday.
Not since the Depression have we had a Supreme Court so out of step with what the majority of the American people want. On top of that we have a Congress that ignores the wishes of the electorate and a Senate that is incapable of doing anything of real consequence because it is held captive by a minority that represents a distinct minority of our population.
It’s hard to be optimistic at moments like this when the deck seems to be so stacked against not just making progress, but also avoiding regress. So it might be reassuring to remember that James MacGregor Burns published The Deadlock of Democracy in 1963 when nothing seemed possible. This isn’t the moment to give up.