Hyperbole Much? CBS Legal Analyst Compares Voting Rights Act Ruling to Dred Scott, Plessy Cases

Writing for the liberal Atlantic magazine today, CBS News legal analyst Andrew Cohen jumped off the proverbial deep end by comparing today's Supreme Court ruling invalidating section 4 of the Voting Rights Act (VRA) of 1965 to two infamous Supreme Court decisions from the 19th century.

"[T]he Supreme Court's decision in Shelby County is one of the worst in the history of the institution. As a matter of fact, and of law, it is indefensible. It will be viewed by future scholars on a par with the Court's odious Dred Scott and Plessy decisions and other utterly lamentable expressions of judicial indifference to the ugly realities of racial life in America," Cohen righteously thundered deep with his 18-paragraph screed

From the lead paragraph, the NYU Law School Brennan Center for Justice fellow [profile picture shown below at right] flung invective and overwrought, partisan rage but went light on legal reasoning. Here's how Cohen opened his piece:


Let's be clear about what has just happened. Five unelected, life-tenured men this morning declared that overt racial discrimination in the nation's voting practices is over and no longer needs all of the special federal protections it once did. They did so, without a trace of irony, by striking down as unconstitutionally outdated a key provision of a federal law that this past election cycle alone protected the franchise for tens of millions of minority citizens. And they did so on behalf of an unrepentant county in the Deep South whose officials complained about the curse of federal oversight even as they continued to this very day to enact and implement racially discriminatory voting laws.

Andrew Cohen profile picture via the Brennan Center for Justice, NYU Law SchoolIn deciding Shelby County v. Holder, in striking down Section 4 of the Voting Rights Act, the five conservative justices of the United States Supreme Court, led by Chief Justice John Roberts, didn't just rescue one recalcitrant Alabama jurisdiction from the clutches of racial justice and universal enfranchisement. By voiding the legislative formula that determines which jurisdictions must get federal "preclearance" for changes to voting laws, today's ruling enables officials in virtually every Southern county, and in many other jurisdictions as well, to more conveniently impose restrictive new voting rules on minority citizens. And they will. That was the whole point of the lawsuit. Here is the link to the ruling.

In a 5-4 ruling over liberal dissent, the Supreme Court today declared "accomplished" a "mission" that has become more, not less, dire in the four years since the justices last revisited the subject. They have done so by focusing on voter turnout, which surely has changed for the better in the past fifty years, and by ignoring the other ruses now widely employed to suppress minority votes. In so doing, the five federal judges responsible for this result, all appointed by Republican presidents, have made it materially easier for Republican lawmakers to hassle and harry and disenfranchise likely Democratic voters. And they have done so by claiming that the Congress didn't mean what it said when it renewed the act by landslide votes in 2006.

When Cohen finally got into actually touching upon the substance of Chief Justice Roberts's ruling, he made sure to give a mere thumbnail sketch of the majority opinion, rather than go through and systematically take it apart. One would think that a legal analyst, trained in the law and familiar with legal reasoning, might attempt to do a little bit of that, albeit in layman's terms for the benefit of a general readership.

Cohen not only failed to do that, but he outright misled readers with this fallacious charge:

The Fifteenth Amendment, which decrees "that the right to vote shall not be denied or abridged on account of race or color," the Chief Justice wrote in a remarkable passage, "is not designed to punish for the past; its purpose is to ensure a better future." Yet the Court's ruling today directly contradicts that lofty premise. A black voter in Shelby County today, as a result of this ruling, has a much grimmer "future" when it comes to voting rights than she did yesterday. Without Section 4's formula, Section 5 is neutered, and without Section 5 that black voter in Shelby County will have to litigate for her rights herself after the discriminatory law has come into effect.

That is patently not true. The Voting Rights Act's section 2 -- which allows challenges to state election laws under the VRA in federal courts -- was not challenged in the case and remains in effect. Under section 2, any "aggrieved party" with standing to sue OR the U.S. attorney general can file a challenge to suspect state or local laws in federal court.

Additionally, while Cohen railed to readers that the ruling today had "used the banner of 'states rights' to undermine the most basic right any individual can have in a free society -- the right to be able to vote free from racial discrimination employed by public official," he conveniently failed to explain how Roberts followed the threads of longstanding precedent regarding uniform enforcement of federal law and the sovereignty of the states (emphasis mine):

despite the tradition of equal sovereignty, the Act applies to only nine States (and several additional coun
-ties). While one State waits months or years and expends funds to implement a validly enacted law, its neighbor
can typically put the same law into effect immediately, through the normal legislative process
. Even if a noncov-ered jurisdiction is sued, there are important differences between those proceedings and preclearance proceedings; the preclearance proceeding “not only switches the burden of proof to the supplicant jurisdiction, but also applies substantive standards quite different from those govern-ing the rest of the nation.”

All this explains why, when we first upheld the Act in 1966, we described it as “stringent” and “potent.” Katzen-bach,
383 U. S., at 308, 315, 337. We recognized that it “may have been an uncommon exercise of congressional
power,” but concluded that “legislative measures not oth-erwise appropriate” could be
justified by “exceptional con-ditions.”
Id.,at 334. We have since noted that the Act “authorizes federal intrusion into sensitive areas of state and local policymaking,” Lopez, 525 U. S., at 282, and represents an “extraordinary departure from the tradi-tional course of relations between the States and the Federal Government,” Presley v. Etowah County Comm’n, 502 U. S. 491, 500–501 (1992). As we reiterated in Northwest Austin, the Act constitutes “extraordinary legislation otherwise unfamiliar to our federal system.” 557 U. S., at 211

Had Cohen desired, he could have given readers a more thoughtful, intellectual, less bombastic and less partisan critique of the Shelby County ruling. Indeed, on June 19 he authored a fairly measured and staid piece "Life After the Voting Rights Act," in which he predicted, fairly accurately, the outcome of the Court's deliberations.

But where's the fun in that when the goal in the liberal media circus is creating a big splash and whipping up liberal voters in a frenzy?

Ken Shepherd
Ken Shepherd
Ken Shepherd is the Managing Editor for NewsBusters