CI: The Supreme Court and the Shape of Social Movements

February 04, 2015 By: nancy a heitzeg Category: 2012 Election, 2014 Mid-term Elections, 2016 Election, Anti-Racism, Civil Rights, Corrupt Judiciary, Criminal Injustice Series, Government for Good, Intersectionality, Police State, Prison Industrial Complex, What People are Doing to Change the World

Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.


The Supreme Court and the Shape of Social Movements
by nancy a heitzeg

I spend too much time thinking about the Supreme Court (although one could argue that others do not do so enough), and more now too, in light of recent events. There is a lot that i could say about the insanely unchecked power of nine robed people, their shadowy grip over the entirety of all our legal endeavors,  and the insidious death star that is the Roberts Court – about to knee-cap Obamacare, rule Gay Marriage a state’s right issue, destroy the legal protections against discrimination afforded by  “disparate impact,”  allow states to torture condemned prisoners to death with any old randomly mixed drug cocktail, additionally constrict women’s protections against discrimination in employment and reproductive matters, and ensconce, even further, the flow of corporate “persons” $$$ into all arenas of politics, while simultaneously diluting the votes of real flesh and blood people.

But I won’t.

Instead, a word about the impact of the Supreme Court on social movements. In the midst of Black History Month, screenings of Selma, and current movements against racialized police state violence, we must remember the significance of Brown v the Board of Education, Topeka Kansas (1954). Despite the practical limits of Brown in effecting desegregation or the failure to implement the directives of Brown II, there can be no denying that the ruling – “separate but equal is inherently unequal” – created a over-arching legal framework that emboldened the Civil Rights Movement.

The repudiation, at the Federal last word level, of the Jim Crow machinery set up in Plessy freed the Civil Rights Movement to pursue direct action civil disobedience with the confidence of victory. Certainly, there was the omnipresent risk/reality of brutal police response, extra-legal violence and death. But segregation could now be challenged at the local and state levels — the buses in Montgomery, the lunch counters in Greensboro, the beaches in Florida, everything in Birmingham – with the assurance that should the cases wend their way through the Federal Courts, the protesters would prevail. The highest Court in the land was 9 – 0, unanimously, on their side.

There are no such assurances today. To the contrary. The Roberts Court, in a series of heavily partisan 5-4 decisions, has largely undone the major legislative and judicial achievements of the Civil Rights Era, and dragged us back towards an Ante-Bellum landscape of extreme state’s rights. Read: state’s right to discriminate.

At the inspiring, poignant end of Selma, the teletype across the screen updates us as to the fate of protagonists. But missing is the fate of the signature legislation which resulted from the many bloody sundays, mondays, tuesdays. The Voting Rights Act of 1965 too lies dead – disemboweled by the Roberts Court in Shelby County v Holder (2013). The victory and sacrifice of so many, undone, by mere paper.

All of this is not to discourage the movements of this moment, but rather to say, Know the Terrain. The Supreme Court offers now no umbrella of support for demands of equality, inclusion, protection from State violence. We will not be saved. Our tactics, our strategies, our protests must take account of the current legal landscape. They must be bold imaginative, community-centered, and untethered to any expectation of sanctuary in the courts. They must operate outside the frame.

This is to say too, even to those who eschew electoral politics, keep a close eye on those nine robed judges and to the possibility of who may appoint them. It matters; their decisions shape the space for movements for decades, for generations not yet born, and mean the difference between raw repression and a small bit of breathing room.

And finally, this is to say that progress is not an uninterrupted forward motion, that no victory is guaranteed forever, Whatever we win today, we must be prepared to defend and re-defend without tire. For the long haul.


Supreme Court Has Deep Docket in Its New Term

October 08, 2013 By: seeta Category: Anti-Racism, Civil Rights, Education

From NYT:

fter back-to-back terms ending in historic rulings that riveted the nation, the Supreme Court might have been expected to return to its usual diet of routine cases that rarely engage the public.

Instead, the court’s new term, which starts Monday, will feature an extraordinary series of cases on consequential constitutional issues, including campaign contributions, abortion rights, affirmative action, public prayer and presidential power.

“This term is deeper in important cases than either of the prior two terms,” said Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University.

An unusually large number of the new cases put important precedents at risk, many in areas of the law the court has been rapidly revising since the retirement of Justice Sandra Day O’Connor. She was at the court’s ideological center, and her moderate instincts played a crucial role in shaping the court’s jurisprudence on abortion, race, religion and the role of money in politics.

Justice O’Connor was succeeded in 2006 by the more conservative Justice Samuel A. Alito Jr., and the impact of that switch is likely to be felt in new cases in all four of those areas, with the court revisiting and perhaps replacing precedents from earlier courts in all of them.

In the last term, the court grappled with the nature of equality — in college admissions, in the voting booth and at the altar. The new term will include a run of cases on the structure of the political process, including ones on the balance of power between the branches of government and the role of money in politics.

Shelby Commentary: What does the Court’s decision mean? #scotus #jimcrow #lawasunfinishedsocialpolicy

June 25, 2013 By: seeta Category: Anti-Racism, Civil Rights, Voting Rights

Chief Justice Roberts’ opinion in Voting Rights Act, Section 5 (Art Lien)

From Scotus Blog:

I have called the Voting Rights Act of 1965 (VRA) a “sacred symbol” of American democracy. For that reason, the Supreme Court’s momentous decision holding unconstitutional a part of the Act – Section 4, for short — that had continued to apply, nearly fifty years later, uniquely to the South, is itself laden with deep symbolic meaning. But what is that meaning?

In truth, the decision will express such radically different meanings to different people that we will not be able to forge common ground regarding even the threshold question of what the decision is “about.” Starting from such irreconcilable symbolic places, any discussion of the actual opinions themselves will be almost beside the point.

To those who will be distraught, outraged, or fearful, the essential question at stake in the Court’s decision – and in the continuing vitality of Section 4 — is whether we believe racial discrimination in voting still exists in the South. The question being framed this way, the Court’s decision today will appear to be, at best, a denial of reality and a reflection of a naïve “post-racial” view that in the Obama era, racial discrimination in voting has ended. Justice Sotomayor, at oral argument, perfectly reflected this perspective on what the decision represents when she posed this pointed question to the VRA’s challengers: “Do you think that racial discrimination in voting has ended, that there is none anywhere?” The answer to that question must be no. From this vantage point, then, as long as racial discrimination in voting still does take place at all in the South, Section 4 of the VRA – the part the Court invalidated – remains not just justifiable, but essential.

In addition, to many people, the VRA symbolizes protection of the crown jewel of rights, the right of access to the ballot box. For those who know the history, this right was born from the blood and the bodies of all those who had been given the last full measure of their devotion to secure full access for all to the ballot box – those beaten on the bridge from Selma, Alabama in 1965, the three civil rights workers lynched in the Mississippi summer of 1964, and many others. How can the Court find unconstitutional an Act that plays any role at all in ensuring political equality regarding this most sacred right? And why should the Court second-guess Congress on these issues?

LISTEN: This Week’s Oral Arguments in Shelby County v. Holder (Audio/Transcript)

March 03, 2013 By: seeta Category: Anti-Racism, Civil Rights, Voting Rights

From The Oyez Project:

The Fourteenth Amendment protects every person’s right to due process of law. The Fifteenth Amendment protects citizens from having their right to vote abridged or denied due to “race, color, or previous condition of servitude.” The Tenth Amendment reserves all rights not expressly granted to the federal government to the individual states. Article Four of the Constitution guarantees the right of self-government for each state.

The Civil Rights Act of 1965 was enacted as a response to the nearly century-long history of voting discrimination. Section 5 prohibits eligible districts from enacting changes to their election laws and procedures without gaining official authorization. Section 4(b) defines the eligible districts as ones that had a voting test in place as of November 1, 1964 and less than 50% turnout for the 1964 presidential election. Such districts must prove to the Attorney General or a three-judge panel of a Washington, D.C. district court that the change “neither has the purpose nor will have the effect” of negatively impacting any individual’s right to vote based on race or minority status. Section 5 was originally enacted for five years, but has been continually renewed since that time.

Shelby County, Alabama, filed suit in district court and sought both a declaratory judgment that Section 5 and Section 4(b) are unconstitutional and a permanent injunction against their enforcement. The district court upheld the constitutionality of the Sections and granted summary judgment for the Attorney General. The U.S. Court of Appeals for the District of Columbia Circuit held that Congress did not exceed its powers by reauthorizing Section 5 and that Section 4(b) is still relevant to the issue of voting discrimination.

Does the renewal of Section 5 of the Voter Rights Act under the constraints of Section 4(b) exceed Congress’ authority under the Fourteenth and Fifteenth Amendments, and therefore violate the Tenth Amendment and Article Four of the Constitution?


Chief Justice John G. Roberts: We’ll hear argument first this morning in Case 12-96, Shelby County v. Holder.

Mr. Rein?

Bert W Rein: Mr. Chief Justice, and may it please the Court:

Almost 4 years ago, eight Justices of the Court agreed the 2005 25-year extension of Voting Rights Act Section 5’s preclearance obligation, uniquely applicable to jurisdictions reached by Section 4(b)’s antiquated coverage formula, raised a serious constitutional question.

Those Justices recognized that the record before the Congress in 2005 made it unmistakable that the South had changed.

They questioned whether current remedial needs justified the extraordinary federalism and cost burdens of preclearance.

Justice Sonia Sotomayor: May I ask you a question?

Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t.

Bert W Rein: Well, I–

Justice Sonia Sotomayor: In — in the period we’re talking about, it has many more discriminating — 240 discriminatory voting laws that were blocked by Section 5 objections.

There were numerous remedied by Section 2 litigation.

You may be the wrong party bringing this.


White Supremacy Unwilling to Die: Voting Rights Act Imperiled

March 02, 2013 By: nancy a heitzeg Category: Anti-Racism, Civil Rights, Corrupt Judiciary, Intersectionality, White Privilege

The Neo-Confederate Supreme Court Gearing Up to Restore White Rule Over America, Alternet:

bloody sunday

 If white rule in the United States is to be restored and sustained, then an important first step will be the decision of the five Neo-Confederate justices on the U.S. Supreme Court to gut the Voting Rights Act, a move that many court analysts now consider likely.

The Court’s striking down Section Five of the Voting Rights Act will mean that jurisdictions with a history of racial discrimination in voting – mostly in the Old Confederacy – will be free to impose new obstacles to voting by African-Americans, Hispanics and other minorities without first having to submit the changes to a federal court…..

The Supreme Court’s apparent intention to gut the Voting Rights Act also could be viewed in the continuum of its five-to-four ruling in the Citizens United case of 2010 in which the right-wing justices freed up rich Americans to spend unlimited amounts to influence political campaigns. In other words, the Court’s majority seems intent on tilting the political playing field in favor of white plutocrats.

But the Court’s Neo-Confederate rationale was underscored mostly openly by Justice Scalia and his sneering remark about minority voting rights being a “racial entitlement” and by Justice Kennedy’s insistence that Alabama has the “independent sovereign” right to set its own voting rules without federal oversight.

Supreme Court Will Hear Gay Marriage Cases

December 07, 2012 By: seeta Category: Civil Rights, Intersectionality, LGBTQ

From NYLJ:

The U.S. Supreme Court will take up California’s ban on same-sex marriage, a case that could give the justices the chance to rule on whether gays have the same constitutional right to marry as heterosexuals.

The justices said today they will review a federal appeals court ruling that struck down the state’s gay marriage ban, though on narrow grounds. The San Francisco-based appeals court said the state could not take away the same-sex marriage right that had been granted by California’s Supreme Court.

The court also will decide whether Congress can deprive legally married gay couples of federal benefits otherwise available to married people in a case from the U.S. Court of Appeals for the Second Circuit. A provision of the federal Defense of Marriage Act limits a range of health and pension benefits, as well as favorable tax treatment, to heterosexual couples.

The cases are likely to be argued in March, with decisions expected by late June.

Supreme Court Faces Another High Profile Term

October 01, 2012 By: seeta Category: 2012 Election, Anti-Racism, Civil Rights, Education, Intersectionality, LGBTQ, Poverty, Voting Rights

From WashingtonPost:

The Supreme Court begins a new term Monday with the most important civil rights agenda in years on the horizon and amid intensified scrutiny of the relationship between Chief Justice John G. Roberts Jr. and his fellow conservatives.

The justices will consider the continued viability of affirmative action in college admissions when it hears a challenge next week to the University of Texas’s race-conscious selection process.

And there are several challenges awaiting the court’s action on the most controversial part of the Voting Rights Act — the Civil Rights-era requirement that some states with a history of racial discrimination receive federal approval before enacting voting or election-law changes.

The court seems all but certain to confront the issue of same-sex marriage by considering suits against the 1996 federal Defense of Marriage Act. The law’s provision denying federal recognition of same-sex marriages performed in states where they are legal has been deemed unconstitutional both by the Obama administration and lower courts that have considered it.

In addition, the court will be asked to review a decision that overturned California’s Proposition 8, in which voters amended the state constitution to define marriage as between a man and a woman.

The Affordable Care Act Stands

June 28, 2012 By: nancy a heitzeg Category: 2012 Election