's Serwer Peddles Cynical Attempt to Paint Supreme Court Conservatives As Racists

March 19th, 2014 4:16 PM

In what may be a new low for, writer Adam Serwer today all but compared Chief Justice John Roberts to his most infamous predecessor, Chief Justice Roger Taney, the author of the infamous 1857 Dred Scott decision.

"Shameful link in Voting Rights Act decision," blared the teaser headline in the lightbox at "Legal scholars argue the decision striking down part of the Voting Rights Act is rooted in the Dred Scott decision, considered the worst in U.S. history," noted the photo caption [see screen capture at bottom of post]

To be fair, Serwer was reporting on the arguments of two liberal law professors, but his real journalistic sin was that of omission: failing to provide for readers a rebuttal by conservatives. What's more, Serwer completely failed to note for the sake of his readers that the legal doctrine in question, the principle of "equal sovereignty" of the states of the Union, was established long before the Court ever heard the Dred Scott case.


Opening his story -- "‘Demeaning insult’ in John Roberts’s Voting Rights Act decision" -- Serwer mocked Roberts and the conservatives on the Court as judicial activists who are secretly inspired by an antiquated, antebellum constitutional doctrine with an unsavory past:

One of the enduring mysteries of Chief Justice John Roberts’s opinion striking down part of the Voting Rights Act is which part of the Constitution the landmark civil rights law actually violated.

Roberts argued that the Voting Rights Act violated the “tradition” of “equal sovereignty” of the states. That concept is far more dubious than it might seem at first glance, according to a legal paper published by two longtime voting rights experts.

“The ‘equal sovereignty’ principle is not in the Constitution,” said James Blacksher, an Alabama attorney with a long career in Voting Rights. “It is, as the Chief Justice says, a ‘historical tradition.” Go straight past the penumbras, hang a right at the emanations.

Blacksher’s paper, co-authored with Harvard law professor Lani Guinier, argues that Roberts’s opinion in the Voting Rights Act case is a descendant of what is widely regarded as the worst Supreme Court decision in American history: The 1857 Dred Scott case, in which the high court held that blacks, slave or free, could never be citizens of the United States. That case is the “origin story” of the “equal sovereignty” principle, the authors argue, because the opinion by Chief Justice Roger Taney held that it would violate the sovereignty of the slave states to recognize blacks as American citizens. By invoking that principle, the authors write in Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote, Roberts was reviving “the oldest and most demeaning official insult to African-Americans in American constitutional history.”

“ ‘Equal sovereignty’ was the basis of the longstanding argument, going all the way back to the founding of the United States, between the slave states and the free states. The slave states claimed that they were equally sovereign with the other states to decide whether to have slavery or not to have slavery,” Blacksher said. “The ‘equal sovereignty’ doctrine that Chief Justice Roberts relied on last year is rooted in the jurisprudence of slavery.”


The days of Dred Scott are long gone, but as long as conservatives control the high court “equal sovereignty” has a bright future.

Of course, while "equal sovereignty" may have been used to defend injustices like slavery, it is in and of itself a neutral political and legal doctrine. What's more, if you read Chief Justice Roberts's ruling in Shelby County v. Holder, you'll see Roberts sees the equal sovereignty doctrine as one tenet of federalism that has a) existed well before 1857 and b) been upheld by the Court in various contexts, none of which have anything to do with turning a blind eye to racial injustices (emphasis mine):

The Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem. Section 5 of the Act required States to obtain federal permission before enacting any law related to voting—a drastic departure from basic principles of federalism. And §4 of the Act applied that requirement only to some States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966).


Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States.
Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960); Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911). Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580. Coyle concerned the admission of new States, and
Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. 383 U. S., at 328–329. At the same time, as we made clear in Northwest Austin , the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States. 557 U. S., at 203.

In Lessee of Pollard v. Hagan, decided in 1845 -- 12 years prior to Dred Scott -- the Court ruled in a land dispute in Alabama that (emphasis mine):

The right of Alabama and every other new State to exercise all the powers of government, which belong to and may be exercised by the original States of the union, must be admitted, and remain unquestioned, except so far as they are, temporarily, deprived of control over the public lands.

[...] [W]e have arrived at these general conclusions: first, the shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively. Secondly, the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. Thirdly, the right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case.

From the ruling in Texas v. White -- in 1869, four years after the Civil War's conclusion (emphasis mine):

The Republic of Texas was admitted into the Union, as a State, on the 27th of December, 1845. By this act, the new State, and the people of the new State, were invested with all the rights, and became subject to all the responsibilities and duties of the original States under the Constitution.


[T]he perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence, and that, "without the States in union, there could be no such political body as the United States." [n12] Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. 

When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Again, that's a reiteration of the equal footing doctrine.

And what of the 1911 case, Coyle v. Smith? In that case, the Supreme Court rebuked Congress for overreach for stipulating where the State of Oklahoma must keep its capital city. Again the Court affirmed equal footing of new states, pointing to state sovereignty and a lack of congressional authority to regulate the behavior of newly admitted states (emphasis mine):

The power to locate its own seat of government and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. That one of the original thirteen States could now be shorn of such powers by an act of Congress would not be for a moment entertained.


The power of Congress in respect to the admission of new States is found in the third section of the fourth Article of the Constitution. That provision is that "new States may be admitted by the Congress into this Union." The only expressed restriction upon this power is that no new State shall be formed within the jurisdiction of any other State, nor by the junction of two or more States, or parts of States, without the consent of such States, as well as of the Congress.

But what is this power? It is not to admit political organizations which are less or greater, or different in dignity or power, from those political entities which constitute the Union. It is, as strongly put by counsel, a "power to admit States."

The definition of "a State" is found in the powers possessed by the original States which adopted the Constitution, a definition emphasized by the terms employed in all subsequent acts of Congress admitting new States into the Union. The first two States admitted into the Union were the States of Vermont and Kentucky, one as of March 4, 1791, and the other as of June 1, 1792. No terms or conditions were exacted from either. Each act declares that the State is admitted "as a new and entire member of the United States of America." 1 Stat. U. S. 567 189, 191.

Emphatic and significant as is the phrase admitted as "an entire member," even stronger was the declaration upon the admission in 1796 of Tennessee, as the third new State, it being declared to be "one of the United States of America," "on an equal footing with the original States in all respects whatsoever," phraseology which has ever since been substantially followed in admission acts, concluding with the Oklahoma act, which declares that Oklahoma shall be admitted "on an equal footing with the original States."

The power is to admit "new States into this Union."

"This Union" was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission. Thus, it would result, first, that the powers of Congress would not be defined by the Constitution alone, but in respect to new States, enlarged or restricted by the conditions imposed upon new States by its own legislation admitting them into the Union; and, second, that such new States might not exercise all of the powers which had not been delegated by the Constitution, but only such as had not been further bargained away as conditions of admission.

Reading through those cases, all of which Roberts cited in his ruling, it's pretty clear there's a defensible case for the principle of "equal sovereignty," in American jurisprudence. It also must be reiterated, again, quoting from Roberts's opinion in Shelby County, that the principle of equal sovereignty does not completely foreclose the notion of assertive measures by the federal government to combat civil rights abuses. Indeed, the issue the Roberts Court found with with Voting Rights Act was outdated data which resulted in unfairly treating some states in relation to others (emphasis mine)

Congress did not use the record it compiled to shape a coverage formula
grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.
The dissent relies on “second-generation barriers,” which are not impediments to the
casting of ballots, but rather electoral arrangements that
affect the weight of minority votes. That does not cure the
problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote
dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new re
cord compiled by Congress.
Contrary to the dissent’s contention, see post,
at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today

In other words, Congress can revise the statute using up-to-date data and the Court would not have a problem with it per se.

Mr. Serwer does a grave disservice to his readers by uncritically forwarding what truly is a "demeaning insult" to Chief Justice Roberts, the conservatives on the Court, and most importantly, the average reader.