Fever Swamp: A Journey Through the Strange Neverland of the 2016 Presidential Race

by Richard North Patterson

  With respect to issues regarding race, the Chief Justice has led the Court’s conservative majority in a counterrevolution against the fruits of the civil rights movement. This is not a matter of happenstance, but a defining feature of his legal career.

  For more than thirty years, John Roberts has pursued an aggressive campaign against programs that promote diversity and protect the voting rights of African Americans. Hence his famous rationale for this crusade: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

  This excruciating platitude does not withstand exposure to the world as it actually exists—the excessive and often deadly use of force against blacks; laws passed to discourage black voters; laws that punish blacks more harshly than whites; continuing educational and economic inequities among the races.

  Such banality is, perhaps, to be expected from a smug country clubber, smiling benignly at the black waiter who has just served up his favorite single malt scotch. But spoken by America’s Chief Justice, it provides cover for rulings that serve the ideology and interests of the Republican Party at the cost of minorities.

  Lest this seem too harsh, a bit of history well known to Chief Justice Roberts. In the wake of the civil rights laws of 1964–65, southern whites en masse deserted the Democratic Party—which they blamed for these laws—and embraced the GOP.

  This was not because they suddenly discovered the charms of limited government as preached by Republicans: the engine of this tectonic shift from one party to another was race—and racial animus. Quite simply, millions of whites feared and resented this potential sea change in political dominance and saw the Republican Party as their only hope of preserving the white power structure.

  Abruptly, southern states became a key part of the Republican base. Cementing their allegiance, Richard Nixon adopted the GOP’s “Southern Strategy,” appealing to the widespread sense of white grievance. Under Ronald Reagan, this strategy ripened further—in 1980, Reagan kicked off his presidential campaign in Philadelphia, Mississippi, where, a decade and a half before, three civil rights workers had been brutally murdered.171

  Buoyed by his southern base, Reagan won by a landslide. And so Republicans seized the White House newly empowered to put into practice their antagonism to what, in their telling, was the Democrats’ overconcern with racial justice.

  Enter John Roberts. From the start, he was a political animal, his career nurtured in the precincts of the Republican right, his thoughts and actions attuned to the conservative ideology that facilitated his rise.

  After clerking for the very conservative Chief Justice William Rehnquist—whose own early career included an unseemly antipathy toward integration—while still in his twenties, Roberts entered the Reagan Justice Department with a distinct hostility toward, as he put it in early memos, “race conscious remedies” that result in “reverse discrimination” against whites. More broadly, he evinced a consistent and profound distaste for policies—in the GOP’s view wrongheaded—aimed at promoting racial justice.

  He urged measures to advance “our anti-busing and anti-quota principles.” He advocated resistance to broadening the Voting Rights Act of 1965 to facilitate the election of minority candidates. He scorned the Equal Employment Opportunity Commission as too friendly to claims of discrimination. He attacked affirmative action because, through his lens, it meant “the recruiting of inadequately prepared candidates.” And he consistently decried racial preferences intended to counteract de facto segregation.

  It is, of course, reasonable to disagree about the efficacy, or even the wisdom, of such measures. But a studied racial insensitivity is something else—let alone a vehement dislike of race-based remedies so intense that it puzzles even judicial colleagues who agree with him.

  It should not take much thought for people like me—and John Roberts—to appreciate that, by dint of sheer good fortune, we are the beneficiaries of the most successful affirmative action program in human history. We are white males born to educated and financially comfortable parents at the height of the American century, subject to all the advantages that conferred, and none of the barriers faced by women and minorities.

  That is not guilt—it’s simply fact. Compared to others, the comfortable white males of our era were born on third base. It is impossible to ameliorate every consequence of that, and foolish to try. But it is worse than foolish to deny that social inequities existed—and still exist today. And never more so than when such willful denial finds a home—indeed a weapon—in our nation’s highest court.

  This is not an attack on John Roberts the person, but an exploration of the damage done by John Roberts the Chief Justice. Former colleagues describe him as a nice and gracious man, albeit an unbendingly conservative one. Judging from his public statements, he seems genuinely concerned that the Court not be perceived as activist or partisan—rather more concerned, regrettably, with the perception than the reality that underlies it.

  His seems to be the case of a top-drawer intellect hobbled by a narrow ideology and a deep political loyalty, aggravated by a limited ability to empathize with, or even imagine, lives different from his own. This is commonplace in private life. But in a Chief Justice, it can be very harmful indeed.

  Take the Court’s decisions with respect to voting rights.

  The seminal case is the 2013 decision Shelby County v. Holder. At issue was a key provision of the Voting Rights Act of 1965, requiring that certain southern states with a history of voter suppression obtain federal approval of changes in their voting laws prior to enactment. The stakes were not abstract—pending at the time of the decision were a number of photo ID laws that, quite obviously, would disproportionately impact poor and minority voters.

  There was—and is—no statistically significant evidence of in-person voter fraud that would justify these laws. Nor was their potential political impact obscure: as a matter of demographics, the majority of voters potentially affected were likely to vote Democratic.

  Even if the evidence of these realities had not been put before the Court, it is simply impossible that they would elude a lawyer as politically sophisticated as John Roberts. Nonetheless, in a 5–4 majority opinion, the Chief Justice ruled that the “pre-clearance” provision for scrutinizing voter ID laws was unconstitutional—a dramatic evisceration of the law that had served as the chief protection for minority voting rights.

  The essence of his reasoning was that racial progress in the South invalidated a requirement based on past racial history. In Roberts’s formulation, the South in 2013 had changed so much that requiring pre-clearance of voting laws to protect minority rights was unfair to the states involved.172

  But, in fact, Roberts’s distaste for pre-clearance had long preceded the history he claimed to rely on: thirty years before, as a Justice Department lawyer, Roberts had opposed the pre-clearance requirement. Plainly, the Shelby County opinion was less a matter of history than of the Chief Justice’s preexisting—and fixed—ideology and beliefs.

  Equally curious, in the private view of a distinguished federal appellate judge, was the uncharacteristic departure from the quality of Roberts’s opinions outside the area of race. To this observer, his opinion in Shelby County is careless, disrespectful of precedent, and dishonest in its accounting of the record before the Court.173

  The evidence that Republican legislatures were poised to enact potentially discriminatory laws was staring Roberts in the face. Given all that, the Chief Justice’s judicial critic reluctantly concludes that, far from being oblivious, Roberts knew exactly what he was doing—placing his finger on the electoral scales to help the Republican Party.

  What is beyond dispute is that the states liberated from pre-clearance were run by Republican governors and legislatures. With unseemly alacrity, in the immediate wake of Shelby fourteen states—eight southern, all but one governed by Republicans—enacted or began enforcing strict voter ID laws. Texas did so within hours. And it was a case origin
ating in Texas that gave the Chief Justice and his Court a glaring illustration of what the Shelby decision had wrought.174

  The case concerned a strict voter ID law twice blocked by the federal courts under the Voting Rights Act. After Shelby, the GOP-dominated Texas legislature promptly reenacted the law.

  The Justice Department challenged it as discriminatory. After a lengthy trial produced an extensive factual record, a federal district judge struck down the legislation. Her findings were striking: the legislature had acted “because of and not merely in spite of the voter ID law’s detrimental effects on the African-American and Hispanic electorate.”

  This could not put the issue more plainly—a direct and unequivocal conclusion that the law was racially motivated, specifically written to suppress minority voting. But on appeal a conservative panel of appellate judges decided that invalidating the law would disturb the voting process in Texas nine days before early voting started—in other words, that it was better to keep in place a law that, based on the evidence, could disenfranchise 600,000 Texas voters. Armed with this curious reasoning, the Fifth Circuit stayed the lower court’s decision.

  The case promptly went to the Supreme Court. Ignoring the detailed finding of discrimination, the Roberts Court upheld the stay—effectively validating the suppression of minority turnout. In dissent, Justice Ginsburg wrote: “A sharply disproportionate percentage of those voters [affected by the law] are African-American or Hispanic,” adding that “racial discrimination in elections in Texas is no mere historical artifact.” But despite a decision by the entire Fifth Circuit to further review the law, just four days ago the Court allowed the stay to remain in place.175

  “It is a sordid business,” the Chief Justice had written in an earlier voting rights case, “this divvying us up by race.” It is indeed. Just how sordid is exposed by Judge Richard Posner’s evisceration of the voter ID laws protected by Chief Justice Roberts. Of all of the rebukes to Roberts’s reasoning, Posner’s is perhaps the most devastating.176

  Circuit Judge Posner is a Republican, a Reagan appointee, and a renowned conservative legal scholar. He is this era’s most eminent writer on the law and, according to one exhaustive survey, the most-cited legal thinker of all time. The occasion for his analysis of voter ID laws was an appeal wherein a conservative appellate court upheld laws passed by GOP legislatures in Indiana and Wisconsin—the latter of which has just disenfranchised 300,000 voters.

  In a scathing dissent, Judge Posner demolished the pretense that these laws exist for any reason other than advantaging Republicans by choking off minority turnout.

  First, he explodes the myth of voter fraud. Spelling out what any sentient observer knows, he affirms that “repeated investigations . . . show that there is virtually no in-person voter fraud nationally.”

  To the contrary, as Posner has stated elsewhere, these laws are “a means of voter suppression rather than fraud prevention.” As he states in his dissent “there is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burden.”

  He then provides the proof. State by state, he surveys the nine states that have passed the most restrictive voter ID laws. All are governed by Republicans; all are politically conservative.

  Finally, Judge Posner demonstrates why poor and minority voters are less likely to have IDs, such as driver’s licenses—not because they are somehow scheming to perpetrate voter fraud, but because of lack of money, time, or easy access to the agencies that issue such forms of identification.177 The obvious effect—and intent—of such laws, Posner concludes, is to suppress voting among groups likely to favor Democrats.

  Should any doubt remain, a participant in drafting the Wisconsin law has come forward to confirm the obvious—that the discussions among the Republican legislators focused not on concerns about voter fraud, but on how best to tilt elections toward the GOP. The ironic effect is to mirror the way voter fraud distorts democracy—instead of stuffing ballot boxes, Republicans are starving them.

  This is the unique ugliness of the GOP effort to fight changing demographics—not by reaching out to minorities, but by disenfranchising them. Just last Friday, former South Carolina senator Jim DeMint trumpeted this strategy on conservative talk radio: Republican voter ID laws, he boasted, “are beginning to change elections toward more conservative candidates.”

  John Roberts cannot be ignorant of this. The facts of race-based voter suppression are glaring—and would be even were he not a politically sophisticated conservative Republican, which casts his “race-neutral” bromides in a particularly pitiless light.

  Here we return to the most famous bromide of all—that the way to end discrimination by race is to stop discriminating by race.

  The context is another Roberts bête noire: affirmative action. In this area, as well, his decisions are suffused with a single-minded focus on eliminating government plans that take any account of race.

  His pioneer opinion was in the 2007 Parents Involved case. That case arose from efforts by Seattle and Louisville to preserve at least some racial diversity in schools affected by residential segregation. The plan that particularly offended the Chief Justice was Seattle’s rather modest effort to use race as a factor in assessing applications to oversubscribed schools—wherein a student’s ethnicity was one of several “tiebreakers” used to maintain a level of diversity roughly reflecting the city as a whole.

  During oral argument, Roberts compared Seattle’s efforts to promote diverse student bodies to the deliberate segregation by race barred by Brown v. Board of Education—simply because race, the sole factor in maintaining absolute segregation of blacks and whites, was also a factor in Seattle’s effort to preserve some level of racial diversity. Morally and practically, this is intellectual perversity of a high order.

  But in the judicial philosophy of John Roberts, any acknowledgment of race for any purpose—even a purpose consistent with Brown—abridges the Constitution. As for preserving racial diversity, Roberts flatly rejects this as an appropriate concern of government. No matter how racially segregated Seattle schools might become, in his view the Constitution prevents any effort to change this imbalance by directly considering race.

  Indeed, Roberts’s famous remedy for stopping discrimination was too much for Justice Anthony Kennedy, who countered that this pat formulation was “not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education should teach us that the problem before us defies so easy a solution. . . . To the extent that [Roberts’s] plurality opinion suggests that the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken.”178

  Thus the conservative Republican Kennedy, no friend to affirmative action, felt compelled to disown this aspect of the Chief Justice’s opinion, and concur on narrower grounds. One might hope that this would give John Roberts pause.

  But Roberts’s war on “racial preferences” continued apace. In 2014, he joined in the decision upholding Michigan’s ban on affirmative action in public universities. This provoked a vigorous dissent from Justice Sotomayor, who characterized Roberts’s signature bromide as “out of touch with reality.” She went on to offer the Chief Justice her own formulation: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

  Undeterred, Roberts responded sharply: “It is not ‘out of touch with reality’ to conclude that racial preferences may . . . do more harm than good.” Far from entertaining second thoughts, he was instrumental in an effort to review yet another program to raise diversity, a modest plan at the University of Texas to consider race as one of many “plus factors” in some student admissions decisio
ns. But for the death of Antonin Scalia, court observers believe that the Roberts Court would have overturned the Texas plan.

  Instead, the case is likely to be held in abeyance pending the appointment of a new justice. Left lingering in the air is Roberts’s inquiry at oral argument of the lawyer for the university: “What unique perspective does a minority student bring to a physics class?”179

  This reductio ad absurdum exposes the fatuity of Roberts’s campaign—not to mention the privileged thought bubble that isolates his philosophical abstractions from the reality of lives outside his own experience.

  Does he really think this is merely about the principles of physics? What about the totality of campus life, and what students of all backgrounds experience as part of a student body? Or the disadvantaged students—minorities and the poor—who are not sustained by the advantageous circumstances into which John Roberts was born? Absent the ability to ask such questions, politics and ideology can condemn even the smartest man to a callous mediocrity of thought.

  The Chief Justice may not want to consider race, but voters can. Democrats can start by supporting whatever candidate wins the party’s nomination and, therefore, has the hope of replacing Justice Scalia with an appointee of broader views.180 That would bring a measure of racial justice to the Court in the most elegant of ways—by making John Roberts, at least among his fellow justices, the member of a minority.

  Why Bernie Lost—and What to Do about It

  MAY 10, 2016

  The first part is simple. Hillary Clinton got more votes.181

  Three million more popular votes, to be precise.182 This margin will not significantly change between now and the end of the primary season. Nor will her margin in pledged delegates, close to three hundred, awarded proportionally state by state. By the normal metrics of any primary contest, Bernie Sanders has lost.