I’ve started reading Rachel Maddow’s new book, Prequel. Chapter 3 is about how the Third Reich looked to U.S. racial policies for guidance on singling out Jews for discrimination. The Reich actually sent lawyers to the U.S. to understand how we did it, considering our laws said all kinds of stuff about equal protection that obviously wan’t practiced. And, basically, the answer was that the white men who ran everything had many ingenious ways to rationalize that the equal protection clauses simply didn’t apply to nonwhites, because reasons.
So it was creepy when this happened yesterday.
A federal appeals court issued a ruling Monday that could gut the Voting Rights Act, saying only the federal government — not private citizens or civil rights groups — is allowed to sue under a key section of the landmark civil rights law. …
… The appellate court ruled that there is no “private right of action” for Section 2 of the law — which prohibits voting practices that discriminate on the basis of race.
That, in practice, would severely limit the scope of the protections of Section 2. On paper, those protections are themselves unchanged by the ruling. But for decades, private parties — including civil rights groups, individual voters and political parties — have brought Section 2 challenges on everything from redistricting to voter ID requirements.
The court’s reasons for this make absolutely no sense to me. But this is exactly the kind of thing courts used to do back in the 1930s to effectively nullify any legal language about equal protection and nondiscrimination. And yeah, the judge who wrote the decision was a Trump appointee.
Adam Serwer wrote at The Atlantic,
The Constitution is supposed to forbid such discrimination, but that sounds simpler than it is. In practice, if you have enough judges or justices willing to find unconstitutional the laws adopted to enforce that right, or willing to rule in such a way that nullifies the ability of those laws to function, you can simply render the Fifteenth Amendment useless. This is what the Supreme Court did after Reconstruction, when Black people were still trying to assert their right to vote and the justices decided it was a right they could not or would not defend.
And that judicial nullification was still going on when Hitler’s lawyers came here to study our legal system.
The majority’s reasoning is simple, if absurd. Although acknowledging that “Congress had ‘clearly intended’ all along to allow private enforcement,” it argues that the text does not say so explicitly, therefore Congress’s intentions, Supreme Court precedent, and decades of practice are irrelevant. The fact that this would allow lawmakers to discriminate against their Black constituents without interference from pesky civil-rights groups is an innocent coincidence. This interpretation of the law was teed up for the judges by Justices Neil Gorsuch and Clarence Thomas in another 2021 voting-rights case in which the conservative-dominated high court weakened prohibitions against voting discrimination.
This decision will probably go to SCOTUS for review, I understand, but fat lot of good that is likely to do.
The majority reaches its decision with a wooden, textualist analysis. It reaches it decision despite recognizing that the Supreme Court and lower courts have for decades allowed such cases to be brought, assuming that Congress intended to allow such suits. And the majority acknowledges that the legislative history of the passage of Section 2 leaves no doubt: Congress intended to allow private plaintiffs to bring suit.
So, yes, this is an outrage.