The rulings from the spring session of the Supreme Court (SC) were some of the most far reaching, consequential and significant I can recall coming out of one session. The Court’s ruling on DOMA (the Defense of Marriage Act), for example, was nothing short of the Brown v Board of Education case of the 21st century in terms of its importance in moving our country closer to perfecting our union. While it can’t be denied the case did not go as far as it could have in declaring an end to discrimination against homosexuals, Justice Scalia, himself, said in his dissent that the ruling will make it all but impossible for states to continue to deny gay’s equal rights (Scalia meant this as a bad thing).
At the same time, the court’s five conservative members declared racism to be a thing of the past and neutered the Voting Rights Act (VRA), the law that finally gave blacks the right to vote in 1964, by saying that the power to review voting laws for racially discriminatory affects cannot be allowed to continue unless the US Congress redraws the map of which states have to be subjected to this kind of review. The old map, which is found in section 4 of the Act, was mostly made up of Southern states with well documented histories of racially discriminating against blacks. The court said this map is out of date because the situation in US has “dramatically changed.”
I can agree that things in America have improved a lot in many regards in terms of race, Paula Dean notwithstanding. However, a lot of those improvements are the direct result of the legal protections offered by things like the VRA, especially in the South. I can also support the idea that states like Ohio, which tried to make voting in urban areas (read: black) extremely difficult in 2012 should be added to the section 4 map. Ohio actually went so far as to give counties that were mostly republican (read: white) more time to vote as a rule before public outcry caused them to reverse course. So yeah, why shouldn’t Mississippi get to point to Ohio and say, “Look! They’re doing it too”? However, expanding the map isn’t what the court had in mind when it essentially did away with the VRA because some areas that need protecting weren’t covered. What the court did with its ruling is say, “Let’s remove all the fire sprinklers in the building because they don’t protect the entire building.” Meanwhile, all I can think is some protection is a lot better than no protection.
As if to prove how much this court misunderstood the realities of our “dramatically changed” country, Texas didn’t even wait two hours before enacting a new voting law that had previously been ruled racially discriminatory and was said by a federal court to have the sole effect of politically empowering whites. Several other states formally subject to federal review under section 4 are also currently tripping over themselves to pass legislation that had already been found to be racially discriminatory against blacks, Latinos and legal immigrants.
One last very important case involved the 5th Amendment: a person’s right to remain silent. As most American’s understand this right it means a person does not have to answer any questions that could cause them to testify against themselves and that their refusal to answer such questions cannot be used against them as proof of guilt. However, in the case Salinas v. Texas a suspect, before being placed under arrest and before having his Miranda rights read to him, was voluntarily answering questions by the police. However, when the police would ask him question directly related to whether he had committed a crime, he would not answer, presumably thinking he was asserting his 5th Amendment right to remain silent. In his trial the prosecution told the jury about this and suggested that him answering some question but refusing to answer others was proof of his guilt. The Supreme Court said this was not a violation of his rights and said that a person has to explicitly state they are invoking their 5th Amendment right in order for it to activate. Having to invoke a right before in order for it to exist makes this right unlike any other in our constitution. All the other rights exist simple because we are alive.
This continues a very concerning trend in America’s criminal justice system where two things keep happening. One, about 40,000 new laws and regulations are put on the books every year at the federal, state and local levels while virtually none are removed. This means every year it becomes easier and easier to break a law simply because there are so many of them. Two, courts keep making it easier and for prosecutors to win cases by reducing legal protections and rights for defendants. In this case, we once again see that people who will suffer the most will be the poor and poorly educated who do not know their legal rights and cannot afford an attorney from the start. I will reiterate the advice of every lawyer in history to their clients. Do not answer any questions asked by a police officer until you have a lawyer.
In another race related case, and in a ruling that surprised most court watchers, the SC chose not to get rid of Affirmative Actions (AA) in college admissions and sent the Texas case back to a lower court for review. However, many legal scholars believe the court made clear its intent to do away with AA very soon. Personally, I believe the ruling in this case once again shows that Chief-Justice Roberts is as much a politician as he is a justice by kicking this case down the road while dealing a more significant blow to racial equality with the VRA. Two rulings of this kind in one session would have been, on its face, too much. So, like he did in the Obamacare case last fall, he attempted to make this extremely conservative court still appear somewhat reasonable while in reality delivering major victories to the extreme right and the Republican Party.