The Supreme Court announced today that it will consider the constitutionality of a key section of the historic Voting Rights Act. Section 5 requires states and localities – primarily in the South – with a history of discrimination to receive federal review and approval of any changes they want to make to their voting laws. Lawmakers first adopted the provision in 1965, during the midst of the fierce civil rights battles to help guarantee the voting rights of African-Americans.
Congress reauthorized the law in 2006 with overwhelming bipartisan support in both chambers; President George W. Bush signed the law. In Shelby County [Alabama] v. Holder, the Court will review a decisionupholding Section 5 by the U.S. Court of Appeals for the D.C. Circuit.
Critics of the law argue that singling out the specific nine states and localities in seven others is outdated and unnecessary now.
Voting rights proponents, though, aggressively used Section 5 this year to challenge a slew of restrictions on voting that Republican-led legislatures enacted in a number of states. Despite a paucity of evidence showing voter fraud to be a serious problem anywhere, supporters of the restrictive measures insisted that they were needed to combat voter impersonation or help election officials do a better job on Election Day.
All eyes were on Justice Kennedy at this week’s oral argument in Fisher v. University of Texas at Austin. As readers of this blog well know, the Supreme Court holds the opportunity to rule on the future of race-conscious inclusive admissions policies — and once again, Justice Kennedy is presumed to be the swing Justice who will decide on the direction of the Court. It is always dangerous to predict rulings based on the Justices’ questions at oral argument, a point driven home by last term’s surprise ending to the Affordable Care Act litigation. And Justice Kennedy, in particular, seemed to keep his cards close in the questions he posed. But the oral argument does suggest that the forthcoming ruling will hinge on one key question: whether the University has persuaded the Court that race-conscious admissions policies remain necessary to achieve a “critical mass” of diversity in its classrooms and campus.
The concept of “critical mass” comes directly from the Supreme Court’s 2003 ruling in Grutter v. Bollinger, where the Court affirmed the ability of University of Michigan Law School to use a race-conscious but individualized review to ensure a “critical mass” of diversity in its student body. The term did not refer to a specific number, but to an aspiration: that a class filled with sufficient diversity would ensure that no individual felt isolated or was forced to “represent” his or her race; that racial stereotypes would break down within a truly varied student body; and that the university would fully realize the educational benefits of diversity for all students.
UT provided the Court with plenty of evidence that it has yet to reach this critical mass. The university used survey evidence to show that African American and Latino students continue to feel unrepresented on campus. UT showed that minority enrollment plummeted when the school relied solely on a plan to admit the top ten percent of every high school class; this policy fosters a certain level of diversity, but only because Texas high schools remain so segregated by race and class. The school looked closely at its demographics to see that certain classes and programs remain segregated. UT did not rely on any one single fact or figure, but instead followed Grutter’s instruction to look broadly at whether the benefits of diversity on its campus could still be improved.
There really are very few Supreme Court justices worth celebrating and many more who are easily forgettable.
But Thurgood Marshall, who joined the high court 45 years ago today, was a champion of equality before he became the first African American to join, at that time, the all-male, all-white Supreme Court.
Marshall was named to the federal appeals court by President John F. Kennedy, and later to the Supreme Court by Lyndon B. Johnson. Both were historic appointments. As John Schachter notes in this post, much of Marshall’s life included historic achievements.
After being denied admissions to the University of Maryland’s law school, because of racism, Marshall earned a law degree from Howard University and launched what would be a trailblazing legal career bolstering and advancing equality and liberty in the country.
In 1940 he founded the NAACP Legal Defense and Educational Fund, which has become one of the nation’s leading civil liberties groups. Before reaching the federal bench, Marshall, as a highly successful attorney, took to the courts and started toppling Jim Crow era laws, tawdry efforts to continue the oppression of African Americans. As Juan Williams wrote in Thurgood Marshall: American Revolutionary, it was Marshall “who ended legal segregation in the United States. He won Supreme Court victories breaking down the color line in housing, transportation and voting, all of which overturned the ‘Separate-but-equal’ apartheid of American life in the first half of the century.”
Of course Marshall’s greatest victory before the high court came in Brown v. Board of Education, where he argued that the odious separate-but-equal principle aimed to keep African Americans “as near [slavery] as possible,” violated the Constitution.
In Sept. 1862, only days after Union forces quelled a Confederate invasion of Maryland, President Abraham Lincoln told his cabinet he was ready to issue a decree freeing slaves in the Confederacy. On Sept. 22, 1862 Lincoln issued the Preliminary Emancipation Proclamation, giving the Confederate states until January 1 to end their rebellion or slaves in the South “shall be then, thenceforward, and forever free.”
Saturday, Sept. 22 marks the 150th anniversary of the Preliminary Emancipation Proclamation that, as historian Eric Foner noted in his bookThe Fiery Trial, Fredrick Douglass lauded as “the most important document ever issued by an American president.”
Foner’s The Fiery Trial notes that Lincoln was, at the time of announcing the proclamation, still seriously considering asylum for freed women and men, believing that colonization could occur somewhere in West Africa or Central America.
Earlier this week at an event celebrating the 150th anniversary of the Preliminary Emancipation Proclamation hosted by the NEH and Howard University, U.S. Rep. John Lewis (D-Ga.), a Civil Rights hero, provided a keynote that touched upon the changes he has seen in his life and included a call for continued work toward equality.
“Slavery was an affront to human dignity,” he said, as reported by Teria Rogers for Afro. “It was an evil, ungodly, dehumanizing system. It did not matter that it lasted over 300 years, it was bound to fail. It could never last because it violated one eternal truth. We’re one people, one family, the American family. We live in the same house, the American house, the world house.”
Lewis, among the young women and men who traveled on buses throughout the Deep South subverting Jim Crow laws and being met with brutal violence, added that the march for equality must never be abandoned.
At a New York Law School symposium examining the impact the 9/11 terrorist attacks have had on civil liberties, John Yoo, former George W. Bush administration attorney who wrote memoranda supporting torture of military prisoners, declared that in the years since the devastating events “civil liberties have grown quite a bit.” Yoo, now a law professor at UC Berkeley Law School, added that civil liberties in the country had been bolstered “because government has been primarily kept out of the way.”
It was a statement that likely left some of the panelists wondering whether Yoo was being intentionally provocative. Indeed as noted time and again by the Center for Constitutional Rights, Human Rights First, Bill of Rights Defense Committee and law professors like Georgetown’s David Cole, a much stronger argument can be made that too often efforts to advance national security have trumped protections of civil liberties and the humane and lawful treatment of military prisoners.
The New York Law School Review’s “visual scholarship project” created a short -- less than 14 minutes -- video highlighting some of that symposium and including additional discussions with legal scholars and advocates such as ACS President Caroline Fredrickson, Fordham Law School Professor Martin Flaherty, and Ohio State University law school Professor Peter M. Shane. Watch the NYLS Law Review video here or see below.
Shane, for instance said, he has knocked the Bush administration “for always saying that if anyone kind of pushed back against harsh interrogation techniques or rendition they would always say ‘well you want just want the law enforcement paradigm.’ And there’s this kind of attempt always to sort of cast people who are asking questions about particular policies as if they were somehow soft on terrorism, at best, and unpatriotic at worst.”
Although President Obama, very early in his term, signed an order banning torture of military prisoners, many civil liberties groups blast his administration for following too much of his predecessor’s actions in this area. For instance, the Obama administration has invoked the so-called state secrets privilege to shut down actions brought by prisoners challenging their imprisonment, and has failed to close Guantánamo Bay, where prisoners are still indefinitely held. (Recently another prisoner died there; he was the ninth to do so. The Center for Constitutional Rights in a Sept. 10 press statement called on the administration to “conduct a full and impartial investigation, and treat the body and the family with all proper respect, none of which, regrettably, has consistently occurred in the past.”) Attorney General Eric Holder has also been criticized for failing to prosecute any of the CIA or military officials allegedly involved in torture of military prisoners.
Shane, in his interview with the NYLS Law Review, said Americans, and possibly people in general, “are often too quick to accept that there is a tradeoff between these two things [national security and civil liberties]; that somehow to be more secure is to be less free.”
Fredrickson, again for NYLS Law Review, said, “Many would argue that civil liberties are actually a core part of the national security that we give our nation, and that only when we have protections for what we believe are our vital rights as Americans are we actually able to keep ourselves safe.”