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Tags: Supreme Court | litmustest | race

A Racial Litmus Test For Supreme Court Appointments

the supreme court building
(AFP via Getty  Images)

By Tuesday, 06 October 2020 10:47 AM Current | Bio | Archive

Questions based on "Litmus tests" for Supreme Court nominees are usually exercises in futility. Nominees can't ethically specify how they would vote on particular cases. They must reserve judgment until considering legal arguments from both sides.

Since Roe v. Wade (1973) found abortion prohibitions unconstitutional, the litmus test has been whether nominees would uphold it. Since this can't be discussed openly at Senate confirmation hearings, everyone dances around a related issue: the extent to which nominees would respect precedents set by previous decisions.

The real question is whether nominees would overturn Roe. Donald Trump's pledge to appoint anti-abortion justices probably explains his otherwise inexplicable support by evangelicals in 2016.

When John Roberts was nominated, he maintained that judges should just play by the rules: "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them." Roberts claimed to have no "agenda," no policies he was seeking to promote.

But judges can't just mechanically apply rules to decide cases. The Constitution, laws and precedents can often be interpreted in different ways. Although their discretion is not unlimited, justices must choose how to interpret these rules.

The consequences of their choices can be especially critical when cases involve race, always a sore point in American public life.

If a litmus test is ever appropriate, it would be one involving the legacy of America's "original sin." It would be proper to ask, and for nominees to answer, this question: "When the Constitution, laws or precedents are ambiguous, would you opt for interpretations that promote social solidarity, reduce racial inequalities and increase government's sensitivity to public opinion?"

Justices taking this pledge would have ruled differently in Shelby County v. Holder (2013) This decision struck down key parts of the Voting Rights Act of 1965 — designed to reduce obstacles to voting by racial minorities — which Congress had recently re-enacted by overwhelming majorities. The court asserted that these provisions were no longer necessary, since there now was large scale voting by minorities.

But courts shouldn't decide whether a law is necessary. That's why we have Congress.

As Justice Ruth Bader Ginsburg noted, dissenting in Shelby, the argument that the struck down provisions were no longer necessary was "like throwing away your umbrella in a rainstorm because you are not getting wet."

Unfortunately, the claim that those parts of the Voting Rights Act were no longer necessary proved to be false. Since Shelby, many states have enacted voter ID laws and other legislation precisely targeted to minimize voting by minorities.

Minority people mostly support Democrats, and legislation targeting their voting was strongly supported by Republican legislators. Whether their motivation was racist or "merely" partisan deck-stacking, they had the effect of holding down the minority vote.

The Shelby decision was supported by the five Supreme Court members appointed by Republican presidents, opposed by the four appointed by Democrats. It was written by Chief Justice John Roberts, who had opposed enactment of the original Voting Rights Act.

The Shelby decision wasn't exactly a matter of calling balls and strikes. Roberts had a choice here. He opted for an approach that reduced the ability of minorities to vote, thereby reducing governmental sensitivity to public opinion.

Within the wiggle room allowed by the Constitution and acts of Congress, judges should chose interpretations which increase national solidarity and equality and minimize the importance of a person's race. If they won't commit to this explicit litmus test, the Senate shouldn't confirm them.

Donald Trump's recent nominee for the Supreme Court, Amy Coney Barrett, should be asked one additional question: Would you recuse yourself from decisions about the upcoming election? If she won't promise to do this, senators should not vote on her appointment until after the election.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan oregon, and a number of other states. Read Prof. Paul F. deLespinasse's Reports — More Here.

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The consequences of their choices can be especially critical when cases involve race, always a sore point in American public life.
litmustest, race
Tuesday, 06 October 2020 10:47 AM
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