As we head towards another presidential election, it would be important for us not to lose sight of major decisions made by the Supreme Court in the last few years during the second Obama administration. And this is not the obvious thing that comes to mind during these highly energized times: namely with a new president comes the power to appoint Supreme Court justices. Politics and law strive to be inseparable when few believe that is ever possible despite what legal theorists and scholars say is a clear separation between legal reasoning and political rhetoric: the law has to maintain the artifice of self-reference, or referring to past precedents or 'tradition'; procedural, or accountable to devices, techniques, principles and rules specific to the legal world, for example stare decisis; and non-committal when it comes to the moral and political implications of a decision. For example upholding the Affordable Care Act that legalized universal healthcare in National Federation of Independent Business v. Sebilius did not indicate concern with the moral question of whether universal healthcare for all is a natural, God-given right. As a matter of fact the normally perceived conservative Chief Justice Roberts swung towards the liberals in a 5-4 vote that many could not predict. The legal judgement of the Court must transcend the whim and emotions of social debate on any given political topic and justify itself as constitutionally valid when interpreting current laws, overturning them or validating the creation of new laws.
But as we head to a new election we can ask what exactly has the Supreme Court decided in the last few years with regard to the most important aspect of politics itself, namely voting rights? Who gets to vote is not a question one would think to ask in a peaceful, secular, legally stable constitutional democracy. Everybody gets to vote in America, right? These momentous SCOTUS decisions however throws the natural jubilation of America's democratic uniqueness into question. Yet the question remains: What groups have been affected the most by these massive judicial decisions given the changing demography of America?
Some may recall that President Obama won the 2012 election despite losing the white male vote by twenty points. Obviously the voting blocs of increasing majority minorities become significant when considering the political strategy of any serious candidate for President now and in the indefinite future. If Obama lost the majority of white male votes, then what did he gain in terms of minorities both male and female? He got the African-American vote by 93 to 6, the Hispanic vote 71 to 27, the Asian-American vote 73 to 26 and 'Other' 58 to 38. Blocs of minority votes do matter as do gendered identities across the board, as it is almost an a priori truth now when conceiving the possibility of winning the presidency. And yet we may look back on this time as the 'cunning of reason' to use the Hegelian phrase. Sometimes the passions that come to light in presidential politics conceal a deeper movement within the law whose consequences are not always of benefit to the larger social good. Two major Supreme Court decisions, which can never get as much natural attention as a presidential election, play out this tension of the progress and regress of civil rights, particularly for African-Americans. And they do so precisely at a time when it recognized as an indubitable demographic truth in contemporary American politics that the minority vote not only counts but is paramount.
Some say that the 2013 SCOTUS decision in Shelby County v. Holder basically disemboweled a major section of the 1965 Voting Rights Act. States in the past with an egregious tradition of discriminatory practices and structures in their voting systems are no longer required to pass the Federal 'preclearance' threshold when revising their voting rules. Establishing voter ID laws would be an example that states can advance now as new voting restrictions as would the ceasing of same day registration. In Shelby, Chief Justice Roberts said, now famously, 'our country has changed.' And states cannot be treated unequally: they cannot be held to disproportionately different standards in terms of their right to expand their basic liberties to determine their own jurisdictional boundaries when it comes to establishing voting restrictions. Liberal critics of this decision say that this gives GOP legislative majorities in these states with 'sordid' pasts, predominantly from the South, the unrestrained freedom to reconfigure their voting rules to the possible detriment of certain minority groups, most notably African-Americans. The argument that the data about American demography from the 1960s do not apply to the present may seem objectively true on face value. However, the critics argue that objective representation of numbers of voters tells us very little about structural and institutional forms and patterns of racism and discrimination. In other words, perhaps, the Court was naïve in its ascertaining of the historical present in determining the superfluous nature of federal oversight of states historically entrenched in racist institutions, structures and the very social fabric of the nation itself. Hence the past can come back in full force. Some instances of changes to the voting rules is the movement of sites that had high voter turn-out for poorer black communities to locations where public transit access is limited. Structural - and not just socio-economic - marginalization in the past can be reinvented in the present.
There are compelling arguments by critics of Shelby County v. Holder. However, by contrast to the majority opinion in Shelby, the Court offered a more favorable liberal ruling in its 2015 decision against racial gerrymandering, or redistricting to concentrate black voters in an already black majority in some sections of the Southern state of Alabama. In ALABAMA LEGISLATIVE BLACK CAUCUS ET AL. v. ALABAMA ET AL. the Court ruled in disagreement with the Alabama District Court's error-ridden assumption: the latter argued that race was not used inappropriately in attempts to redistrict voting sections to the advantage of one racial group (whites) over another or the disadvantage of one group (blacks) in relation to another. Instead, the Supreme Court argued in its majority opinion that Alabama's legislature attempted to redistrict black voters into single majority districts, thus denying them distributed electoral power. Furthermore, the District Court erred in its upholding of this racial gerrymandering by not looking at district-by-district changes, but state-wide changes to the redistricting plan. Placing blacks in to already black majority districts denies their influence within white majority districts pure and simple, particularly under the false pretense of creating more evenly balanced majority-minority lines.
In rebutting the majority opinion, the conservative dissent epitomized by Justice Thomas restated the color blind necessity of the constitution. Indeed districts cannot benefit a certain racial group based on color in order to promote individuals of a single race to vote as a bloc representing group interests. In a deeper dig into the majority opinion, Justice Thomas pointed the finger at the real 'culprit' of racial segregation, which was not the Alabama legislature's redistricting plan but the Court itself. Most notably, Justice Thomas points to subterranean jurisprudential assumptions on voting rights and the 2006 amendments to section 5 of the 1965 Voting Rights Act enforced by the DOJ: the purpose of these ill-thought changes, according to the conservative justice, is to give minorities a chance to elect candidates of their own preference. But, for Justice Thomas, this flies in the face of creating free and equal citizens who should be untainted of racial consideration and bias. Furthermore, as he argued in previous concurring judgements joining Justice Scalia in majority opinions against affirmative action, no single individual of a racial group should be forced to speak for or on behalf of a group's interests or be expected to personify all the interests of an entire racial group. This would be a disaster for the concept of individual freedom.
In light of these two major decisions during the second administration of the Obama presidency, it would behoove us to think about how we are to strike a balance between these not so obvious parallel trajectories: one is the obvious change in political demography in which a past majority bloc of individual voting power (the white male) no longer holds sway and the other the oscillations of the Supreme Court in its attempts to deal with the legacy of the Voting Rights Act of 1965 to avoid racial discrimination. Such discrimination in voting can take place at the hands of bad legislation, i.e. purposeful redistricting through the invalid use of race as a category, or faulty legal judgement in attempting to create balanced majority-minority state-wide lines that inadvertently results in greater disenfranchisement of a minority group. But it also persists in the false notion that our times are different and that institutional and structural racism are definitive things of the past. Voting for future U.S. presidents may very well be determined by how well we as a nation can strike this delicate but necessary balance between politics and law: that is to ensure freedom and equal opportunity for everyone's interests to be represented in their choice of leadership without being forced to represent those interests as legally constructed groups but as truly free and self-determining individual citizens.