SCOTUS AS AN ARCHITECT OF DEMOCRATIC DECLINE

 

The US Supreme Court this past week put yet another nail in the coffin of democracy with its conservative majority decision in the case of Louisiana v Callais—a decision that essentially guts hard-fought protection of minority voting rights as sanctioned in the Voting Rights Act of 1965, passed into law during the Civil Rights Era. As such, the Court has taken a major step toward bolstering white supremacy, a core goal of the Trump-hijacked GOP’s Project 2025, the overall aim of which is the destruction of democracy and the instituting of a far-right, single-party, autocratic oligarchy.

Combined with the nefarious 2010 Supreme Court decision in the case of Citizens United v Federal Election Commission—basically the “right” (according to SCOTUS) of corporations, lobbyists and billionaire oligarchs to buy politicians and laws—and we have the most anti-democratic “perfect storm” in post-World War II American history. Still more alarming, is the fact that the Supreme Court—once the guarantor of the common citizen’s civil and human rights—is showing ever more autocratic tendencies, and a penchant for ruling for rich over poor.

Suffice it to say that, in 2010, the Court upheld Citizens United by the nearest a nine-justice Court can get to a split decision. The decision was upheld by a five to four margin. This past week, the openly anti-democratic Louisiana v Callais decision was made by a six to three vote. Half of the six opinions disemboweling the Voting Rights Act were, of course, entered by Trump far-right appointees. A fourth was that of long-serving Clarence Thomas, whose Trump Era opinions and his wife’s political activism since 2020 have led many observers to define him as “a Trump sycophant”, while his alleged acceptance of numerous undeclared emoluments and favors from wealthy Republican backers have gained him a reputation as a friend of the oligarchy.

The dissenting opinions by the only three liberal members of the Court were particularly critical. They pointed to the clear and unprecedented damage the decision would do to voter and civil rights, and especially as regards the disenfranchising of black voters.

It is noteworthy that, like the repealing of Roe v Wade—another “Trump Court” decision that severely undermined civil rights (in this case the right of women to control their own bodies)—momentous rulings by the Court since Trump first took office in 2016 have all too often been in keeping with the autocrat-in-chief’s personal agenda and with the tenets of Project 2025 (the manifesto of the Trump-hijacked far-right GOP leadership). And the few times that this Supreme Court has deigned to rule against Trump’s most insane and fatuous proposals, the president has dubbed the justices “disloyal”—as if that branch of government owed fealty to the Executive—and often reminded the three Trump appointees that they owe their power to him. It gets harder and harder, then, to see the Supreme Court as the impartial arbiter that it once was—the non-political third leg of the stool supporting democracy, the branch that was there to keep the other two honest.

This was certainly not the case with the Citizens United decision. That initiative was bitterly opposed by the administration of that time, headed up by President Barack Obama. Obama described that ruling as “disastrous”, since it permitted special interests, corporations, and foreign entities to spend unlimited and undisclosed sums of money to influence US elections.  

Obama posited that Citizens United would cause "real harm" to democracy, because it would drown out the voices of average citizens. He wasn’t wrong. And he went as far as to call for a Constitutional amendment to overturn the ruling and restore power to Congress to regulate campaign financing. Despite his best efforts, however, Citizens United was allowed to stand. And Obama’s astute view of it is clearly on display today, with politicians being ranked, not by their records as to how well they have served the people, but by how many millions of dollars they manage to collect for their election and reelection campaigns.

Citizens United has thus practically guaranteed that politicians devote a great deal more of their time to campaigning and fund-raising than they spend doing the work of government and loyally serving their constituents. Never have there been more supine and less productive congressional sessions than under the two Trump terms, with the main action being the blocking by each party of the other’s initiatives, and the establishment of a climate in which healthy cross-aisle compromise is seen as unspeakable betrayal. 

Citizens United has also sounded the death knell for that part of the American Dream that sought to convince every schoolchild of my generation that they could one day be a representative, a senator, or even the president of the United States. Today, without the backing of some segment of the oligarchy, it is nearly impossible to get into office. The exceptions are few and noteworthy, and almost always well left of center (which, to an ever greater extent, is where democratic fervor remains alive and well). Citizens United has, then, been one of the most corrupting influences on today’s political scene.

The far-right majority decision in Louisiana v Callais further corrupts and represses democracy by attacking voter rights in the US, striking directly at the heart of democracy, by essentially returning the political system to its post-Reconstruction Era in which anti-black-vote “lynching” began to be accomplished more through gerrymandering and rigged legislation than at the end of a rope.

In practical terms, what the Court’s decision last week signifies is a direct and structural rollback of minority voting rights protections. In practical terms, this ruling tosses out decades of legal precedent aimed at fighting suppression of minority black votes and bolsters white supremacists’ goals aimed at returning African American political influence to its pre-Civil Rights Era insignificance.

The ruling is doing this in the following ways: It basically neutralizes Section 2 of the 1965 Voting Rights Act (VRA). This was the primary safeguard against racial vote dilution in the United States. The decision doubles down on this by also imposing an essentially unworkable legal standard, referred to as “intent-based discrimination”, which, in short, renders challenges to discriminatory voting maps nearly impossible to articulate. In this way, the Court’s cleverly-nuanced decision basically authorizes minority vote dilution, while disingenuously claiming neutrality.

Louisiana v Callais contradicts more than sixty years of legal precedent and pro-democracy congressional action. This is, in essence, the Trump-majority Supreme Court rewriting historic Civil Rights Law from the bench, giving clear advantage to white supremacist and Republican sensibilities, while snatching the life out of mechanisms enacted to protect minority voter rights from dilution and marginalization.

But the ruling goes far beyond this by essentially gutting the entire Voting Rights Act. That is to say, it does monumental harm to voter rights by devastating one of the most major achievements of the Civil Rights Era, and the life’s work and sacrifices of such civil rights icons as Reverend Martin Luther King, Justice Thurgood Marshall, John Lewis, Medgar Evers, Malcolm X, Jesse Jackson, and many more.

The Court has, after sixty-one years of legal precedent, and mostly successful application—despite continuing efforts to suppress black voters—declared the all-important Section 2 of the law “unconstitutional”. Section 2 is the very backbone of that piece of legislation, a law designed, precisely, to regulate and enforce the Fifteenth Amendment. That 1870 amendment prohibits the federal government and state governments from denying a citizen the right to vote based on "race, color, or previous condition of servitude". As the last Reconstruction Amendment, it aimed to enfranchise African American men, though its impact was severely limited for decades by discriminatory state laws, which will very likely now be re-enacted and updated in some form (mostly through blatant discriminatory gerrymandering) in many red states, and particularly in those of the former Confederacy.

This is not, by any means, a narrow ruling. It quite literally, and in practice, removes the only remaining nationwide tool to challenge racial gerrymandering, especially after racial gerrymandering already gained a leg up with decisions like Shelby County v Holder, which weakened federal preclearance tools to prevent states from discriminating against minority voters.

The Court appears to have purposely ensured that racial gerrymandering will be possible by introducing a so-called “intent standard”, which makes discrimination practically impossible to prove. This too is novel in that it erases long-standing results-based tests that determine “discriminatory effects” of redistricting, with a much more subjective requirement to “prove intentional discrimination.” In other words, the Court bases its decision on the theory of  non-racial party lines rather than on the factual discriminatory results of state election laws and redistricting. 

This matters because modern gerrymandering employs data-driven techniques (commonly known as  “cracking” and “packing”) that manage to dilute minority voting power with no need to use explicit racial language in the resulting voting rules. The “intent” twist means that courts will have no choice but to ignore blatantly discriminatory outcomes unless explicit racism is proven—something that will be nearly impossible to do.

The so-called “conservative” majority on the Court posits a theory of “colorblindness” that, in effect, actually enables inequality. In his defense of the ruling, Justice Alito argued that any use of race in districting violates equal protection for all voters. But civil rights defenders point out that what Alito fails to say is that, while the decision forbids the use of race to fix inequality, it effectively allows gerrymandered election maps that clearly produce racial inequality.

Constitutional experts are describing this aspect of the ruling as “weaponized neutrality”—meaning that it cavalierly ignores real disparities while at the same time further entrenching them. As such, what the Trump Supreme Court has done in practice with this ruling is to legalize minority voter discrimination that will be predictable, measurable, and intentional in effect, but deniable as a motive—thus providing a palpable victory for the white supremacist far-right.

In short, the decision proposes that race-conscious remedies are unconstitutional, but that race-correlated harm is perfectly permissible.

The arguments of the three liberal justices (Sotomayor, Brown Jackson and Kagan) make it clear that with this ill-advised and racially discriminatory ruling the Court is intentionally decimating a landmark civil rights law. They posit that the decision a) effectively dismantles fair protections for minority voters, abandoning the US Congress’s explicit mandate, and b) blithely ignores reality and US history. On this last point, the three liberal justices argue that Section 2 has existed precisely because, as history tells us, racial discrimination adapts and persists even in the absence of explicit intent.

The minority of three posits that the ruling actually invites race-based vote dilution. By eliminating effective enforcement, the Court seems to be intentionally opening the door to discriminatory maps nationwide. The liberal minority insists that the Constitution allows race-conscious remedies when necessary to ensure equal political participation, while the right-wing majority replaces such remedies with the non-reality-based theory that denies any ongoing inequality even exists.

As I have posited many times before, if a single person’s rights can be trampled with impunity, everyone’s rights are at risk. And whenever that happens, democracy has been breached, especially when that breach becomes part and parcel of institutional norms.

Former Supreme Court Justice John Paul Stevens warned that with the Citizens United decision of 2010, the Court had created a situation in which “laws are being bought and sold.” In doing so, he was identifying a crisis of political equality. In her dissent on the Court’s decision in Louisiana v Callais last week, Justice Elena Kagan warned that SCOTUS was “dismantling the Voting Rights Act piece by piece.” What her admonition identifies is a direct crisis of voting power for minority segments of the population.

If you put the effects of these two nefarious Supreme Court decisions together, you simply no longer have a system where government is responsive to the people as equals. It has been replaced, under the supreme authority of the Court, with a system in which authoritarianism rules, democracy is crippled, and influence is bought and sold while the fair impact of minority votes is intentionally diluted to keep a despot and his cronies in power.

THE BEFORE AND AFTER OF A 'HAVING IT ALL' REGIME

“Vamos por todo...¡por todo!

Cristina Fernández de Kirchner

 

 

Dark humor from a Facebook

site called

"Si-no-te-gusta-vaffanculo"

Authentic democracy filled the streets of major cities all over Argentina on the evening of Thursday, April 18, while tyranny stalked the halls of the national Executive, Legislative and Judicial powers. The A18 protest was, like its 8N predecessor, a spontaneous civic demonstration organized from computer to computer through the social media and without partisan links. A number of opposition politicians respectfully joined the protesters but from the uncomfortable low-profile position of tolerated guests rather than organizers, since demonstrators have made it abundantly clear ever since the first of three progressively stronger protests less than a year ago that they are as disappointed with the lukewarm opposition as they are furious with the rabidly self-absorbed ruling political movement.

In an outpouring of genuine democratic zeal, millions of people of all political colors poured into the country’s streets—over a million participating protesters in the nation’s capital alone—to reject what their supposed political representatives were ostensibly doing in their name and in the name of “democratization”: seeking to introduce “reforms” that would give an already autocratic Executive Branch even greater discretionary power, to the detriment of the Judiciary, the rule of law, the rights of the individual and those of the “fourth power” (the media and their role as the guardians of free expression in representation of the people). But that wasn’t all—as if that were not enough—that the hundreds of thousands who took to the streets were protesting. They were also decrying encroaching corruption that, in the last decade, has become so shockingly flagrant that it can no longer be hidden from view. In that sense, the revelations aired the previous Sunday night—and that continued last night—by investigative

In Buenos Aires alone, over a million people turned out

for the A18 protest.



broadcast journalist Jorge Lanata proved a major catalyst for the 18A protests and clearly marked a “before and after” in terms of any doubts anyone might have had about links between blatant criminal activities and the powers that be.

If opposition politicians were relegated to a secondary role in the A18 event, however, they were indeed showing greater activism than usual with regard to the “reforms” that a now embattled administration was seeking to ram through its rubber-stamp majority in Congress with the pace and power of an express train. Two days before the mass protest, members of opposition political movements gathered before court buildings in Buenos Aires to protest the government-sponsored judicial “reform” bills, by holding up a sky-blue and white national banner bearing the inscription “Sin justicia, no hay futuro” (without justice, there is no future)—a noble thought and slogan, but not strictly true. Without Justice there could indeed be a future for a despotic government bent on ruling in perpetuity and on protecting its circle of influences—just not for democracy, representative governance or civil rights.

The protesting politicians also certified their opposition by signing a document rejecting what they unequivocally termed as the government’s “attempt to control Justice.” Among the opposition politicians involved in the pre-A18 protests were representatives of the centrist Radical Party and Peronist Opposition Front, the center-left Civic Coalition and the conservative PRO movement. Joining them were also numerous attorneys, former prosecutors, constitutional law experts and other jurists.

The President, for her part, remained true to form and acted as if she had never heard the revelations of crime and corruption within her inner circle that Lanata reported in chilling detail and with documented evidence to back up his claims. The task of defending her ivory tower walls she left to her surrogates in the press, like Mauro Viale and a once serious investigative reporter, Rodolfo Graña, who, of late, has become an unabashed cheerleader for the K regime and a pitbull sent to attack its enemies. In all cases, pro-K mouthpieces limited themselves to hammering the messenger rather than presenting any sound evidence to refute the Lanata team’s impeccable two-year investigation.

One usual spokesman for the Kirchners, however, did break ranks when it came to the Judicial "reform" bills. As head of the Center for Legal Studies (CELS), writer and former Montonero urban guerrilla Horacio Verbitzky, who not only usually follows the government's script but also often writes it, surprised many observers by sharply criticizing the bills for restricting the civil rights and legal recourse of citizens.

Federico Elaskar, former owner of SGI -

a.k.a. "La Rosadita"

Meanwhile, the public got a taste of what the proposed government-sponsored “reforms” will mean to Argentine civil rights when the corroded wheels of justice failed to creak into action on the heels of Lanata’s investigation. Despite the fact that his televised reports provided compelling information linking a Puerto Madero finance firm called SGI—and nicknamed “La Rosadita” due to its geographic proximity and alleged connection with the Casa Rosada (Government House)—and its former owner, Federico Elaskar, to massive money laundering, the first part of the week passed without a single judge’s daring to invoke his/her own authority to order the premises searched. This, despite the fact that neighbors of Madero Center—the building where the company has its office, and where not only Vice President Amado Boudou but also President Kirchner reportedly own property—went onto Facebook and Twitter to report boxes apparently containing documentation being carried from the building. It wasn’t until Thursday, in the very midst of the A18 mass protests, that police descended on the finance firm’s offices, making a great show of the raid, despite the fact that if they’d found anything of relevance to the Lanata investigation, it would have been a miracle, since those implicated in corruption in high places, had been given all week to make sure anything incriminating—more incriminating, that is, than the documentation Lanata had already made public—was long gone.

Two generations: The Kirchners, mother and son, Cristina and Maxi; the

Báezes, father and son, Lázaro and Martín. Close ties.



Perhaps one of the principal virtues of Lanata’s investigation is that it has taken corruption out of the realm of generality and put names and faces with events, as well as specifying the connections between political and economic powers in the Kirchner era. He has introduced us to Santa Cruz strongman Lázaro Báez, who over two decades and on the strength of his relationship with former governor and president Néstor Kirchner—as attested even by Kirchner’s former lieutenant governor, Eduardo Arnold—went from being an obscure provincial bank teller to, first, running the bank, and then, acquiring a bankrupt construction company and turning it into a major State contractor, as well as accruing interests in oil, media, aeronautics and land (some 250,000 hectares, most of which he bought with cash).

Leonardo Fariña, a compulsive talker.

We also met the flamboyant and singularly indiscreet Leonardo Fariña, who distributed vast amounts of cash that the alleged Báez-Kirchner partnership flew out of Santa Cruz in amounts weighty enough to be considered air cargo. We met Federico Elaskar, who admitted to helping Fariña set up as many as 50 offshore phantom companies through which to launder vast sums of money, before being forced out of business by another nefarious face in the chain, that of Daniel Pérez Gadín. And we also met Fabián Rossi, whose business contacts, allegedly gained through his relationship with Argentine Ambassador Jorge Arguindegui in Panama, allowed him to help Báez set up ghost operations in foreign tax havens.

As Lanata was revealing how in a country where foreign exchange regulations are so tight that Argentine tourists aren’t permitted to legally change enough pesos into dollars or euros to take a business trip or brief vacation abroad, friends of the ruling family have been moving foreign currency out of the country by the bale, another story was being told: that of Santa Cruz Province under the 12-year governorship of Néstor Kirchner. A province so remote and sparsely populated that for the vast majority of Argentines it might as well be another country, it would have been a good case study to have analyzed before the election of Kirchner to the presidency in 2003, when he was an unknown politician who just happened to be in the right place at the right time. Had observers seen how the Kirchners had their own province sewn up so tight that nothing happened without their say so, it would have been easy to see what was in store for the nation under their power structure model. In fact, many of the key players who have accompanied them in Santa Cruz have remained with them throughout their decade at the head of the national administration. And the President’s latest moves to tie the hands of the Judiciary are simply part of the Santa Cruz model of total control. With 125 seats in the Lower House of Congress belonging to ever faithful rubber-stamp Kirchnerist deputies, the effort to keep this affront to democratic rule from passing has boiled down to bringing as much opposition pressure as possible to bear on just 12 deputies whose past performance has marked them as swing voters. The “reform” bills would give the Executive virtual control over the naming and removal of judges, and, among other things, would also make it virtually immune to any legal recourse that citizens could take against it to protect their rights. Until now the Kirchner government has had to find ad hoc ways of shoving a stick into the wheels of justice, such as allegedly naming temporary judges and prosecutors to replace ones it fears might rule against it. If its bills pass into law, it would be able to handle such manipulation of the Judiciary pretty much as it pleases and within a “legal”—if morally illegitimate—framework.

The 12 mavericks on whom an independent Judiciary depends.

A little over a year ago, on February 27, 2012, at a rally in Rosario commemorating the two hundredth anniversary of the first raising of the Argentine flag, Cristina Kirchner stated, in a nutshell, the essence of her government’s plan: “Vamos por todo...¡por todo!” (“We’re going for it all...for all of it!”) she shouted, gesticulating to a clump of her FPV (Frente para la Victoria) political movement gathered in the crowd before the reviewing stand in Argentina’s third largest city. It wasn’t part of her own speech. It was, instead, a sort of battle cry that she issued, without a microphone, in the middle of Socialist Mayor Mónica Fein’s speech, obviously startling the mayor, as the president’s fans drowned Fein out with their shouts of approval for their jefa’s words and gestures. It was a show of power and disrespect. It was Cristina trying to demonstrate to the mayor that she, not Fein, owned the street, that even if Fein was at the mike, the crowd belonged to the Kirchner regime and so did the country—but in ways that clearly have had little to do with democracy or constitutional administration.

As political news commentator Joaquín Morales Solá pointed out this past week, Jorge Lanata’s investigation has brought to the fore what everybody in politics and serious journalism already knew: basically, that Argentina currently reeks of corruption as it never has before—which, after the era of Carlos Menem in the nineties, is saying a mouthful—and that the deeper meaning of “going for it all” carries with it a barely veiled and underlying threat and project of perpetuity in government, the creation of a popular dictatorship capable of protecting the burgeoning Kirchner estate and its friends and partners in power.

Jorge Lanata

As Morales Solá tangentially points out, Lanata’s investigation has been a mere catalyst, a wake-up call, a way of whacking people—including a somnolent opposition—over the head with what, in voluntary blindness, they’ve been tripping over on a daily basis for the past ten years. If most people living in Argentina were honest with themselves, they would have to admit that they have long since seen the signs of advancing tyranny and crippling corruption within the power structures that are seeking to control every aspect of life in this country. But why did it take the unique head-on style of a Jorge Lanata to wake people from their lethargy even as their democracy, their freedom and their well-being are being wrested from their hands? The late Argentine physician and world-renowned heart specialist René Favaloro once said, “After so often seeing incompetence triumph and dishonor prosper, after so often seeing injustice grow, after so often seeing power in the hands of bad people burgeon, Man eventually becomes disheartened with virtue, laughs at honor, and is embarrassed to be honest.” Perhaps the answer to my question lies within this wise man’s simple yet crystal-clear observation.

Some people still cling to the idea that Néstor and Cristina Kirchner’s original plan of passing the presidency back and forth between them ad infinitum died along with the late former president, and they cling as well to the hope that the presidential elections of 2015 will no longer contain a Kirchner as a candidate, since it is—currently at least—unconstitutional for any president to serve three consecutive terms. But astute and highly respected political analyst Nelson Castro said it all when he reminded the country this past week that for Cristina Kirchner and her entourage, “a ‘re-reelection’ is a matter of life and death.” Clearly, without a means of retaining their hold on power and the judicial immunity that goes with it, the President and her entourage would become common (if vastly wealthy) citizens, who could be called upon to answer for all charges and allegations against them.

The latest advances by the President and her rubber stamp majority in the Senate against the necessary checks and balances of any truly democratic society should have left no doubt in anyone’s mind about their intention to “go for all of it” by also controlling the Judiciary and thus sealing their future impunity. And if they manage to get away with it by also carrying the Lower House of Congress, then there should also be no doubt about what their next move will be: a rubber stamp constitutional “reform” aimed at “legalizing” the President’s illegitimate, totalitarian ambitions and perpetuating her administration in power.