Blame the Supreme Court for America's sharp political divide
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The contentiousness of our national politics is partly driven by the issues the Supreme Court put on the national agenda, including the rights of racial, sexual and religious groups. The high court’s assignment of powers to the state and federal governments and lower courts, known as federalism, can be an escape valve, but it currently seems to be intensifying hostility.

The Supreme Court’s fall agenda brings back another issue of federalism, the extent to which national rules control state decisions about voting rights. In the past two decades, the Supreme Court chose some national political winners and left others to the states. Federalism in the election cases is less about heat than the shape and consequences for democracy. Both the cases raising election and social issues also raise compelling moral issues.

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After the Civil War, the Reconstruction Amendments expanded federal and contracted state powers, leading to Supreme Court decisions that had enormous, often disastrous, national impact. President Grant appointed James Roswell Beckwith as U.S. attorney for Louisiana. Beckwith prosecuted the perpetrators of what is known as the Colfax Massacre, in which a predecessor of the Ku Klux Klan murdered as many as 150 former slaves who, with their white supporters, had created a biracial government in Colfax County and in Louisiana. The massacre changed Colfax County politics.

 

In 1876, the Supreme Court decided United States v. Cruikshank, which held that Beckwith and the federal government had no jurisdiction to prosecute people for the murders, even though they were committed to preventing the slain from voting and to terrifying their supporters. By barring national enforcement of basic rights, the Supreme Court set the legal basis for a century of lynching, intimidation and impunity that destroyed democracy in the states of the former confederacy.

Half a century later, the Supreme Court began to protect Fourteenth Amendment rights to a fair criminal process in state prosecutions. It held that the Fourteenth Amendment selectively incorporates many provisions of the Bill of Rights in the first section of the Fourteenth Amendment, and held those rights are the same whether applied to the states or the federal government. Included were the rights to have an attorney and freedom from coerced confessions, among many others. The court also found ways around Cruikshank and other decisions in order to deal with people who tried to avoid federal jurisdiction by claiming to be acting in private rather than official capacities.

Those advances are now seriously undermined. The North has been segregated in the years since Brown v. Board. Virtually every area of American life is now defined by the impact of so-called de facto segregation by race and class. Concurrently, the court crafted immunities and denied that the Constitution is self-enforcing, thus robbing the Bill of Rights of much of its protection for fair trials. The court has so far backed off enforcing the Constitution that, as Shakespeare once put it, the Constitution is more honored in the breach.

For liberals, recent religious establishment cases now threaten to dismantle anti-discrimination rules which protect African Americans, women, gays and minority faiths from discrimination. Recent Second Amendment decisions protecting gun rights have led hate groups and their supporters to bring weapons to demonstrations and political rallies. Liberals are disturbed that under Chief Justice John Roberts, the Supreme Court barred all levels of American government from even minimal forms of racially explicit action to combat continuing segregation and structural discrimination.

With conservatives poised to take unchallenged control of the court, liberals who fought to nationalize constitutional rights for all levels of government may now have buyers regret if the court blocks their efforts for a more fair and equal world. Conservatives who fought against nationalization of constitutional rights may benefit from it now that the court is on their side. Judicial decisions marking the limits of federal judicial power are a two-edged sword.

By nationalizing rights, the court closed the escape valve. For those of us on the winning side of those battles, the loss of an escape valve may seem like a small price to pay. But the polarization of America that has been fanned by those issues threatens to cancel the best of the court’s work. That will be a large price to pay. Our world would be a much better place had Cruikshank and other cases in the late 19th century that denied federal power never happened.

But the nationalization of rights has now raised the stakes for everyone, immobilized American politics, and is leading to increasing political violence, with abortion providers, politicians and minorities marked in gunsights and mass killings. Ouch. In this contentious climate, the court has protected the rights of states in election cases and refused to enforce rules of democratic engagement. Cases about federal elections, however, involve the competing rights of all the states, and therefore the liberty of none, to rig elections in their own favor.

Where a safety valve may be appropriate, the European Court of Human Rights has developed what it calls a margin of appreciation. The need for some form of deference is magnified by its multinational jurisdiction, reviewing courts of the member states. Instead of either overruling or rubber-stamping decisions, the European Court of Human Rights refrains from overriding decisions within a margin of appreciation. It is designed to avoid confrontation and secure the cooperation of member countries. The Civil War, however, left the United States with stronger national institutions than the European system.

Diverse legal rules can affect where people and corporations choose to land and work, which countries become leaders or backwaters, not only in law, but also in commerce, driven by location and relocation decisions. The Brown decision and air conditioning opened up the South. Embrace or resistance to legal change could recreate backwaters in the United States. Decisions whether to allow inconsistent state rules, however, can involve enormous moral trade-offs over who or what may be lost or victimized.

Having become one nation in law, we are not yet one people. Nevertheless, creating a “rights of states” escape value on social or election issues could aggravate the moral costs without achieving political rapprochement.

Stephen Gottlieb is the Jay and Ruth Caplan distinguished professor at Albany Law School and an expert in constitutional law. He has served on the board of the New York Civil Liberties Union and the New York advisory committee to the U.S. Civil Rights Commission. His latest book is “Unfit for Democracy: The Roberts Court and The Breakdown of American Politics.”


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