> > https://theintercept.com/2020/10/14/amy-coney-barrett-hearing-voting-rights-act/ > Amy Coney Barrett’s Take on Voting Rights Act Exposes Her Entire Legal > Philosophy as a Lie Barrett claims to defer to the original meaning of > statutes, but when it comes to the Voting Rights Act, that deference is out > the window. > <https://theintercept.com/staff/ryangrim/> > *Ryan Grim <https://theintercept.com/staff/ryangrim/>* > > October 14 2020, 2:09 p.m. > > *A single, dominant* theme has emerged from Amy Coney Barrett’s testimony > during her confirmation hearing for the U.S. Supreme Court this week: She > is, she has repeatedly said, a “textualist” who believes that the plain > meaning of a statute reigns supreme, that the job of writing those laws > belongs strictly to Congress, and not to the courts. She’s lying — and the > lie was exposed nakedly in her assessment of the Supreme Court’s 2013 gutting > of the Voting Rights Act > <https://www.nytimes.com/2013/06/26/us/supreme-court-ruling.html>. > > On Wednesday, Sen. Dianne Feinstein of California, the top-ranking > Democrat on the Judiciary Committee, asked Barrett about that case, Shelby > v. Holder. In particular, she asked Barrett if she agreed with her mentor > Justice Antonin Scalia’s conclusion that the act was a “perpetuation of > racial entitlement.” > > Barrett declined to answer, instead repeatedly framing the case as one in > which the Supreme Court decided whether the law’s key provision, which > required states with a history of discrimination to clear their voting law > changes with the Department of Justice, was “outdated and needed to be > updated from the 1960s.” (The court, in a 5-4 decision, freed the states of > that federal oversight.) > > Feinstein did not press Barrett on the wild discrepancy between her claim > that the court could decide to “update” a statute because a number of > decades had passed and her belief in the firmness of originalism and > textualism, legal philosophies she says define her approach. > > Describing herself as an “originalist,” Barrett said this week, “In > English, that means that I interpret the Constitution as a law and that I > interpret its text as text, and I understand it to have the meaning that it > had at the time people ratified it. So that meaning doesn’t change over > time, and it’s not up to me to update it or infuse my own policy views into > it.” > > She said the same of textualism. “Similarly to what I just said about > originalism, for textualism, the judge approaches the text as it was > written, with the meaning it had at the time and doesn’t infuse her own > meaning into it,” she said on Tuesday. > > Her response to Feinstein, then, is precisely the type of thing that the > legal movement Barrett comes out of crusades against. It’s not up to > judges, originalists and textualists say, to put a finger in the wind and > rewrite laws. That’s the job of lawmakers. > > That discrepancy alone makes a stark contradiction between her stated > approach and her actual approach to the law. But it’s worse than that. To > make the Voting Rights Act look in need of a judicial update, Barrett > suggested that Congress hadn’t dealt with it since the 1960s. That was a > lie. In 2006, a Republican Congress passed a reauthorization of the Voting > Rights Act after a yearslong series of negotiations between the parties. > Named the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting > Rights Act Reauthorization and Amendments Act of 2006 > <https://www.congress.gov/bill/109th-congress/house-bill/9/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D>, > it ultimately passed the House 390-33 and cleared the Senate 98-0. It was > then signed into law by President George W. Bush, who pledged his > commitment to enforce its updated provisions. That’s how laws ought to be > made, according to Barrett, who was nominated by President Donald Trump to > the 7th Circuit Court of Appeals in 2017. > > But to acknowledge all of that legislative activity undertaken by > democratically elected lawmakers would undermine her claim that the law > hadn’t been “updated from the 1960s.” Barrett has been praised from all > corners for her command of the law and the facts during her appearance > before the Judiciary Committee. She was well into her legal career, already > teaching at Notre Dame, when the high-profile reauthorization of the Voting > Rights Act unfolded. There is no possibility that she is unaware of it, > though Feinstein, who was involved in writing the reauthorization, didn’t > mention it. > [image: Amy Coney Barrett Confirmation Hearing] > > Ranking member Sen. Dianne Feinstein, D-Calif., leaves the Senate > Judiciary Committee confirmation hearing for Supreme Court justice nominee > Amy Coney Barrett in Hart Senate Office Building on Monday, October 12, > 2020. > > Photo: Tom Williams/CQ-Roll Call, Inc./Getty Images > > *The right-wing legal* movement began working through the courts to > undermine the Voting Rights Act immediately after it was reauthorized, with > Chief Justice John Roberts as a ready ally. In a school desegregation case > heard in late 2006 and decided in 2007, Parents Involved in Community > Schools v. Seattle School District No. 1, Roberts observed, “The way to > stop discrimination on the basis of race is to stop discriminating on the > basis of race.” It was the same reasoning he would later use as author of > the lead opinion gutting the Voting Rights Act. In a 2009 case that came > just short of striking down the key provision of that law, Northwest Austin > Municipal Utility District No. 1 v. Holder, Roberts noted, “Things have > changed in the South” — again foreshadowing the approach he’d later take. > Then came Shelby, the 2013 ruling that freed states from federal oversight > when it came to their election laws, with Roberts again arguing that racism > had sufficiently faded as to make the law — reauthorized just seven years > earlier — out of date. Within hours of the ruling, Texas pushed through new > voter suppression laws, quickly followed by other Southern states, where > assaults on the right to vote are routine and ongoing. > > Barrett’s related tactic to make the ruling appear noncontroversial was to > cloak the decision as one that turned on a small, technical question, what > she called “the question of how the coverage formula is calculated.” She > declined to state her personal opinion on the question, noting that it was > likely to come back before the court again, though she made clear she felt > it was a legitimate question to ask. > > Feinstein didn’t press her or let viewers know what that arcane legal > language meant, but in short, the law had required states with a robust > history of voter suppression to clear any changes to voting rights laws > with the Department of Justice, which would determine whether the changes > would have a disparate impact on voters of color. Barrett noted that the > court left in place the rest of the law. “It is my understanding,” she > said, “that everything else about the Voting Rights Act remains intact, > including its prohibitions on discrimination in elections.” > > As someone in Barrett’s position ought to well know, a law on the books > isn’t worth much if there is no way to enforce it. The constitutional > amendment giving Black men the right to vote after the Civil War remained > on the books all through Jim Crow, as did the Civil Rights Acts of 1866 and > 1877, which guaranteed broad equal protections and barred segregation. > Without any ability after Reconstruction to federally enforce the law, > however, it was meaningless, and by the end of the 1800s, as a result of > voter suppression laws like literacy tests and poll taxes, the Black vote > was approaching zero in the South. James Moone argues in the new book > “Republic of Wrath” that the ability of Democrats to suppress Black votes > was partly thanks to Republicans’ own self-interested bigotry in how they > wrote the amendment. Some Republicans had pushed to make voting a firm > constitutional right, unbridgeable by state authorities. But other > Republicans still wanted to be able to suppress the votes of Irish and > Chinese immigrants, who tended to favor Democrats, so the compromise > language purposely left loopholes that both parties would later exploit. > > Hostility to Irish immigrants faded in the 20th century, and as > Republicans abandoned the Northeast for the South and the sunbelt, the > party was less interested in suppressing those votes. In the South, though, > voter suppression of the Black vote remained near universal, even as Black > voters used the franchise in the North and West coasts to influence the > Democratic Party. And so the Voting Rights Act of 1965 singled out areas of > the country for enforcement where the Black vote was being > disproportionately suppressed. That provision was updated in 2006 and wiped > out by the Supreme Court in 2013, all in the name of deference to Congress. > > The Supreme Court recently announced that it would hear a new set of > cases that could gut what’s left of the Voting Rights Act. > <https://www.vox.com/2020/10/2/21498587/supreme-court-voting-rights-act-amy-coney-barrett>As > Barrett noted, pieces of the Voting Rights Act still remain intact. But not > if Amy Coney Barrett gets to rewrite it. > > > Related Texas Voter Suppression Tactics Recall the Jim Crow Era > > <https://theintercept.com/2020/10/05/texas-voter-suppression-greg-abbott-absentee/> > > ---
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