It looks like Chief Justice "Racism is Dead" John Roberts had to really stretch to find some constitutional -- or extraconstitutional -- justification for gutting the Voting Rights Act last year, so he reached into his conservative bag of tricks and time-traveled to the mid-1800s for the answer.
Roberts argued that the Voting Rights Act violated the “tradition” of “equal sovereignty” of the states. That concept is far more dubious than it might seem at first glance, according to a legal paper published by two longtime voting rights experts.
“The ‘equal sovereignty’ principle is not in the Constitution,” said James Blacksher, an Alabama attorney with a long career in Voting Rights. “It is, as the Chief Justice says, a ‘historical tradition.” Go straight past the penumbras, hang a right at the emanations.
Blacksher’s paper, co-authored with Harvard law professor Lani Guinier, argues that Roberts’s opinion in the Voting Rights Act case is a descendant of what is widely regarded as the worst Supreme Court decision in American history: The 1857 Dred Scott case, in which the high court held that blacks, slave or free, could never be citizens of the United States. That case is the “origin story” of the “equal sovereignty” principle, the authors argue, because the opinion by Chief Justice Roger Taney held that it would violate the sovereignty of the slave states to recognize blacks as American citizens. By invoking that principle, the authors write in Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote, Roberts was reviving “the oldest and most demeaning official insult to African-Americans in American constitutional history.”
“ ‘Equal sovereignty’ was the basis of the longstanding argument, going all the way back to the founding of the United States, between the slave states and the free states. The slave states claimed that they were equally sovereign with the other states to decide whether to have slavery or not to have slavery,” Blacksher said. “The ‘equal sovereignty’ doctrine that Chief Justice Roberts relied on last year is rooted in the jurisprudence of slavery.”
Because of the 2009 decision concerning the Voting Rights Act, Roberts was able to avoid an outright citation to the Dred Scott case:
Roberts cited a smattering of cases in justifying his decision and allusion to the “equal sovereignty” principle, none of which were the Dred Scott decision. Some of them were innocuous, like a 1911 rulingstating that the federal government couldn’t force a state to decide its capital. But among the precedents Roberts cited was the 2009 Voting Rights Act case, in which the Chief Justice got seven of his colleagues to sign onto the idea of a “fundamental principle of equal sovereignty” among the states. Roberts persuaded his Democratic-appointed justices to go along because the decision temporarily staved off a final decision on the Voting Rights Act’s constitutionality. After last year’s decision, several observers wrote that Roberts had planted a “time bomb” in the 2009 case disguised as a temporary respite for the Voting Rights Act.
It shouldn't come as a surprise to discover a conservative Chief Justice reaching all the way back to the days of Dred Scott for his justification to gut voting rights, particularly in the states where protections are most needed.
Of all the legacies George W. Bush left the country with, his court appointments may be the ones that undo us all.