The Neo-Confederate Supreme Court

Exclusive: The Right’s desperation over U.S. demographic changes has spread to the U.S. Supreme Court where its five Republican partisans appear ready to tear up the most important part of the Voting Rights Act and thus clear the way for suppressing the votes of minorities, reports Robert Parry.

By Robert Parry

If white rule in the United States is to be restored and sustained, then an important first step will be the decision of the five Neo-Confederate justices on the U.S. Supreme Court to gut the Voting Rights Act, a move that many court analysts now consider likely.

The Court’s striking down Section Five of the Voting Rights Act will mean that jurisdictions with a history of racial discrimination in voting – mostly in the Old Confederacy – will be free to impose new obstacles to voting by African-Americans, Hispanics and other minorities without first having to submit the changes to a federal court.

The three key right-wing justices on the U.S. Supreme Court, from left to right, Antonin Scalia, John Roberts and Anthony Kennedy. (From the official 2010 photo of the U.S. Supreme Court)

This green light to renew Jim Crow laws also would come at a time when Republican legislatures and governors across the country are devising new strategies for diluting the value of votes from minorities and urban dwellers in order to protect GOP power, especially within the federal government.

Already, the Republicans’ aggressive gerrymandering of congressional districts has ensured a continued GOP majority in the U.S. House of Representatives although Democrats outpolled Republicans nationwide in Election 2012.

Some GOP-controlled states, which also have tended to vote Democratic in presidential elections, are now considering apportioning presidential electors according to these gerrymandered districts to give Republican presidential candidates most of the electoral votes even if they lose the state. [See Consortiumnews.com's "Return of Three-Fifths of a Person."]

On Wednesday, the five partisan Republicans on the U.S. Supreme Court showed that they wanted to do their part in devaluing the votes of blacks, Hispanics, Asian-Americans and young urban whites. So the key GOP justices indicated during oral arguments that they are looking for excuses to strike down the heart of the Voting Rights Act.

Right-wing Justice Antonin Scalia shocked the courtroom when he dismissed the Voting Rights Act as a “perpetuation of racial entitlement,” suggesting that the right of blacks to vote was some kind of government handout.

But almost as troubling was the remark from Justice Anthony Kennedy who insisted that the Voting Rights Act, which was first enacted by Congress in 1965 and was renewed overwhelmingly in 2006, was an intrusion on Alabama as an “independent sovereign,” states’ rights language reminiscent of the Old Confederacy.

Indeed, the five Republican justices – also including John Roberts, Clarence Thomas and Samuel Alito – seem to have absorbed a Neo-Confederate interpretation of the Constitution that is at odds with what the Framers intended.

The Stolen Narrative

The language about “independent” and “sovereign” states was part of the Articles of Confederation, which governed the United States from 1777 to 1787 and which proved so disastrous that George Washington and James Madison insisted that the Articles be tossed out entirely during the writing of the Constitution in 1787.

General Washington, in particular, hated the concept of “independent” and “sovereign” states because he saw the effect on his inability to secure adequate supplies and munitions for his troops during the Revolutionary War. The states often reneged on their promises to provide support, and the central government had little power. In the Articles, it was deemed a “league of friendship.”

With the Articles failing as a governing structure, the Constitutional Convention in Philadelphia was instructed to propose amendments, but Washington and Madison engineered the complete elimination of the Articles in favor of the new Constitution.

The Constitution made federal law supreme and transferred national sovereignty from the 13 states to “We the People.” All language about state “sovereignty” and “independence” was expunged, though the Framers left the states substantial control over local matters.

However, the tensions between the federal government and the states continued, especially over the South’s insistence that the slavery of African-Americans be made a permanent part of American life. Among the compromises in Philadelphia had been a particularly offensive clause that counted black slaves as “three-fifths of a person” for the purpose of representation.

Slave states also wanted their “peculiar institution” to be extended to other incoming states to prevent the possibility of non-slave states outvoting the slave states in Congress. Ultimately, this dispute led to Southern states seceding from the Union after Abraham Lincoln’s election in 1860.

The Rise of Jim Crow

The North’s victory in the Civil War appeared to establish the supremacy of federal law as expressed in the Constitution. The Thirteenth Amendment was enacted in the waning days of the conflict, abolishing slavery once and for all. The Fourteenth and Fifteenth Amendments then established the principles of equal protection under the law, including the right to vote.

But still the former slave states didn’t give up. With whites reasserting their racial supremacy – and their political dominance through electoral trickery and terrorist violence – the states of the Old Confederacy created a Jim Crow system of racial segregation that included devious means to rob African-Americans of the voting franchise.

It was not until the civil rights struggle of the 1950s and 1960s that the federal government again stepped in against these racist laws and actions. This intervention produced an angry white backlash in the South and a resurgence in the Right’s pseudo-scholarship about the U.S. Constitution.

Over the past half century, wealthy right-wingers have invested millions and millions of dollars in “think tanks” and other research institutions – the likes of Heritage Foundation, Cato Institute and Federalist Society – that have worked diligently to cherry-pick the nation’s early history to transform America’s Founding narrative into its opposite, with Washington and Madison made into states’ rights lovers and federal government haters.

In this right-wing narrative, the Articles of Confederation largely disappear because their presence destroys the storyline of the Framers enacting the Constitution to enshrine the principles of states’ rights and a weak central authority. After all, if the Framers wanted that kind of system, why did they throw out the Articles with those “sovereign” and “independent” states and with the federal government just a “league of friendship”?

But the Right’s scholars were well-paid to make a Neo-Confederate case. So they took the rather inconsequential Tenth Amendment and elevated it into some defining principle. In reality, it was a sop to the Anti-Federalists during the difficult ratification of the Constitution and simply says that powers not granted to the federal government remain with the people and the states.

The amendment meant very little since the Constitution granted very broad powers to the central government, and Madison always asserted that the Constitution defined the limits of federal power (which is why he initially thought there was no need for a Bill of Rights). [For more on this history, see Robert Parry’s America’s Stolen Narrative.]

Neo-Confederate Revisionism

Why this history is significant today is that the five right-wing justices, making up the majority of the U.S. Supreme Court, are the products of this Neo-Confederate revisionism. They absorbed this ersatz history as they rose through the ranks of right-wing ideology and institutions.

Now they are in position to impose their false constitutional thinking on the United States, particularly as those theories relate to the present Republican crisis with the country’s changing demographics. As the white population shrinks to below 50 percent, the only way to sustain white control is by devaluing minority votes by, in effect, counting them as only worth three-fifths of a person.

If the GOP can’t rig future elections to give greater weight to white votes and less value to the votes of blacks, Hispanics, Asian-Americans and urban white youth (who accept the nation’s new multiculturalism), then the right-wing cause will almost surely be lost.

Thus, the Supreme Court’s arguments tend to sound more like a pundit debate on Fox News or a discussion group at the Conservative Political Action Conference than a serious legal deliberation.

For instance, Chief Justice Roberts questioned the need for Section Five of the Voting Rights Act by making the clever but disingenuous argument that blacks in Mississippi vote in higher proportions relative to whites than those in Massachusetts.

However, his point is illogical because, first, that would indicate that the Voting Rights Act is working as intended in Mississippi – not that it should be struck down – and, second, people aren’t saying that Massachusetts has taken actions to discourage black voting. In the United States, people have the right to vote or not to vote. The legal problem arises when state and local jurisdictions try to stop people from voting.

The Supreme Court’s apparent intention to gut the Voting Rights Act also could be viewed in the continuum of its five-to-four ruling in the Citizens United case of 2010 in which the right-wing justices freed up rich Americans to spend unlimited amounts to influence political campaigns. In other words, the Court’s majority seems intent on tilting the political playing field in favor of white plutocrats.

But the Court’s Neo-Confederate rationale was underscored mostly openly by Justice Scalia and his sneering remark about minority voting rights being a “racial entitlement” and by Justice Kennedy’s insistence that Alabama has the “independent sovereign” right to set its own voting rules without federal oversight.

[For a limited time, you can purchase Robert Parry’s trilogy on the Bush family for only $34. For details, click here.]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his new book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com).

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31 comments on “The Neo-Confederate Supreme Court

  1. gregorylkruse on said:

    They won’t be happy until they reinstate slavery.

    • rosemerry on said:

      They really have, with the huge number of incarcerations and the use of cheap prison labor to expand the profits of transnational corporations.

      • Ron Beyer on said:

        Rosemerry you have hit the nail solidly on the head. That is the biggest reason our incarceration rate has went through the roof, and the biggest reason for prison privatization.

    • handsomemaggie on said:

      angry white Christian males uber alles…

    • Dave on said:

      Problem is, minorities could ending up making slaves out of white people if whites become the minority.

  2. Ronald Thomas West on said:

    Neo-Confederates, nice call. Their common roots are in the ‘Federalist Society’ where John Roberts’ name turned up on the steering committee roster (he claimed to congress he “honestly could not remember” being a member), and of course there is ‘no guilt by association’ in the USA, so it is immaterial Dick Cheney’s general counsel, Shannen Coffin, is John Roberts’ bosom buddy [that's sarcasm]

    The Federalist Society is also where such luminaries as Samuel Alito, John Yoo and Condoleezza Rice (a Black confederate) hang their hats when away from home, and the society was founded by none other than Ed Meese who’d mentored Antonin Scalia’s to the Supreme Court. And there you have it, the executive branch neo-confederate insiders’ equivalent of ALEC. Funny, how confederates ended up claiming to be federalists .. but that’d be only fit for satire

  3. Not all the US minorities – I bet. Just look at the 9 judges at the Supreme Courts.

    Of the nine(9) U.S. Supreme Court justices, four(4) are Jews or partial Jews. This is a numerical representation of 44%. Jews are approximately 2% of the U.S. population. Therefore Jews are over-represented among the U.S. Supreme Court justices by a factor of 22 times(2,200 percent).

    http://thezog.wordpress.com/who-controls-the-supreme-court/

    • Ronald Thomas West on said:

      Six are Catholics, there are nine justices, do the math ;)

      Oh and I’m part Roma, does that make me a Gypsie? I don’t think so. The over representation is by far Catholic Christian and when it comes to that, there are good and evil people of all faith, race, gender, ethnicity, sexual orientation, and your agenda is clear

      • rosemerry on said:

        To ee those grinning selfsatisfied faces in the photo, I squirm to think of them being any sort of christian.

    • Hillary on said:

      Remember Catholics are known as “Jews for Jesus” or Zionists for Jesus.
      .
      It is very doubtful if there will ever be a “no God” Supreme Court Justice.

  4. Paul Mertz on said:

    I like sarcasm. And, I hope your being sarcastic when you say, ” there’s no guilt by association ” in the USA. Our storied history, especially the civil rights struggles, are filled with those who just happened to be ” in the wrong place at the wrong time “, so to speak. Innocent bystanders are hard to identify in any war, and the ongoing Civil War, is no different. Johnny Reb must feel pretty stressed with all the pressures of these new invaders. Coming from all directions now, too.

    • Ronald Thomas West on said:

      @ Paul Mertz, yes it was sarcasm. Shannen Coffin had lobbied for John Roberts to a point of neo-con political fellatio. Also I forgot to mention Cheney as well as Coffin’s Federalist society affiliation, so that’s taken care of too. The Federalist society is where some of the most evil schemes of the past two decades have been hatched, my opinion

  5. Every appalling utterance of Scalia restates the urgency for Term Limits for all Supreme Courtesans.

    Imagine if we simply had an 18 year limit for the Supreme Court in effect back in 2000. We would not have Rehnquist or O’Connor to tamper with the sanctity of the voting process – okay, some would prefer to say “destroy democracy” as they refused to ensure all Florida votes were simply counted correctly.
    With the sweetest irony, O’Connor would have had to retire under a Democratic president, Bill Clinton. We all know her wish was to retire under a Republican president, and thus she cast the deciding vote that ushered George W Bush into the White House. Term Limits = No Bush. Scalia and Thomas would not be there to give us Citizens United. And we’d not be looking at Scalia and Friends salivating to eviscerate the Voting Rights Act.

    • Ronald Thomas West on said:

      Term limits would also have knocked William Brennan off the bench when he was in his prime as a justice, it can be a two edged sword. What gets under my skin is how we’ve not solved this problem; in any democracy, those who play by the rules will always be at a disadvantage to those who easily subvert the rules to their own advantage

    • Frances in California on said:

      Oh, Bill, it seems like a good idea, but like all good ideas that occur to people suffering under the yoke of Neo-con-ism, it can be so easily twisted to their advantage and our further degradation.

    • Under a simple 18 year limit it’s true that one of our greatest liberal Associate Justices, Brennan, would have left the bench in 1974. But I’d add: Any ex-AJ could be nominated again, and I could see Carter putting Brennan back on the court during his term. Unfortunately Carter did not have the opportunity to nominate any AJ.

      I can’t imagine Scalia or Thomas being nominated AND approved for a 2nd term.

      The idea is not new, some in depth info is available:
      http://epstein.usc.edu/research/supctLawCalabresi.pdf
      and
      http://www.amazon.com/Reforming-Court-Limits-Supreme-Justices/dp/1594602131

  6. Gretchen Robinson on said:

    they really want to reduce women to second class status again. Some rumblings of women staying home and being supported by their husbands (heterosexism) and not needing an education (majority of those in college are female). Course African American women always worked outside the home and needed to work. As well, their earnings were far less than that of White men–and women.

  7. Those justices might be a lot of things, but Confederate (neo or otherwise) they are not. They are the very antithesis of all that a Confederate stands for, viz., strict constitutionalism and states’ rights (including nullification and secession if left with no other option). Nope, they are all Neo-Yankees of various stripes. No Confederate would claims them…

    • Ronald Thomas West on said:

      Thank you for a great belly laugh, and the scary thing is, Rand Paul might agree with you .. but I’m not so certain 80% of the southern White women would wish to revert to being a ‘Georgia Peach’ in this day and age, despite there being many ‘Crackers’ alive and well..

  8. F. G. Sanford on said:

    If the progressive community were really rational and had a vision, they would simply argue to end the electoral college and transition to direct democracy and election by popular vote. The electoral college serves only to preserve the quaint, provincial notion of “states rights”, which is double-speak for “white supremacy”.

  9. rosemerry on said:

    The gerrymandering that is allowed to happen so easily in the USA, plus the ludicrous choice of SCOTUS by POTUS, regardless of any kind of ability, ethics or decency (judging by most of the present members) makes it impossible to have a democratic country. Present decisions are making this worse.

  10. Popular vote is double-speak for lawlessnes and mob rule… The united STates is a continent pretending to be a country. Direct Democracy by the American population en mass means the NorthEast and California tell everyone else what to do. Sounds great!

    • F. G. Sanford on said:

      I knew that would get your goat…or whoever your barnyard friend is. You’d still be able to pick an illiterate moron for governor, you just wouldn’t be able to make the rest of us share your outhouse lack of enlightenment.

      • I’s sorry fer tryin’ t’ think fer myseff, suh, whin we gots gud, rite thinkin’ pro-a-gressives doin’ all dat complikated calculashuns ’bout gud gobmin an’ all dat fer ALL ov us down heer in da Souf!

        Wee shuld just know our plase an shut our mouf!

        Pleeeeeze dont whup us, masa suh! Dont send dem feder armies down heer to burn, rob, pilage, an’ rape us again!

        We gonna list’n gud t’ ya dis time! Just you wait an’ see. Wheel bee gud fo sho!

        • F. G. Sanford on said:

          Uh, don’t look now, Rastus, but your education budget cuts are showing. Don’t those creationists teach teach you anything anymore?

          • paul c on said:

            Nope. We pretty much just pledge allegiance to the flag, read about the sins of the evil white man, and prepare our young men (and now our women) to join the army to fight for whatever it is that our leaders tell us is worth fighting for.

  11. G.M. Cole on said:

    If the Supreme court justices were under the same rules as other judges,we wouldn’t have these problems. The 2000 decision would be moot.

  12. DarkDream787 on said:

    This is bad how? sorry but I’d hate to see the day this country is over run with blacks and hispanics. might as well call it mexico 2

  13. vallehombre on said:

    Following the logic of the 5 justices would they not be restricted to 3 votes among them?

  14. vincent goodridge on said:

    Slavery and white supremacy have always motivated the Anti-Federalists and the slave holding states. They proffered false and or out dated concepts of “states-rights; limited government etc. to push this agenda. They searched for a way to keep their slaves when the Framers of the Constitution wrote Art 1,Sect 9:1 into the Constitution which put a 20 year moratorium on importing people into the US for the purpose of slavery which they understood would eventually phase out slavery. We’ve all heard the refrain ” this will not stand.” Well the modern day would be slavers continue with that tired old mantra, “The South will rise again.”

  15. paul c on said:

    This is the weakest argument against state sovereignty I have ever heard. I’m sure it’s not your fault.

    That Marxist paradigm of yours colours everything in black and white (literally; pun intended).

    With so many -isms, -ologies, and hate groups to hate, I wonder how folks like you still have enough time to manage your own affairs.

    Who’s got time to read all dem troublin’ primary documents anyway? We already know that Southerners are stupid and morally deformed… They couldn’t possibly be right, right?