Extraconstitutional Supreme Court and New Jim Crow
Air Date: May 3, 2021
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind, I’m honored to welcome today’s guest chancellor’s professor at UC Berkeley Law, Bertrall Ross. Thank you so much for joining me today.
ROSS: Thanks for having me. It’s great to be here.
HEFFNER: Professor Ross, you just delivered a lecture at Wesleyan, virtually, on the Constitution, Democracy and Economic Inequality as part of the Hugo Black lecture series on Freedom of Expression. What was the thesis that you most wanted to convey when you were delivering that lecture?
ROSS: The thesis I most wanted to convey was the anti-Republican origins of our constitution. Our constitution set up a framework that would allow for and actually promoted economic or political inequality, which ultimately has served to reinforce economic inequality and the same in the current context and thinking about ways in which we might counteract the political inequality embedded within our constitutional framework. So that was the main focal point of the lecture.
HEFFNER: When you think of the inequities that are systemic in the construction of the constitution and the preservation of the constitution to date, what are those structures that are engendering in 2021 that pervasive inequality?
ROSS: The structures that are in engendering pervasive inequality have to do with the gross inequality in participation in our political system, which has to do with two main factors. First factor are the tangible costs associated with voting. These tangible costs include the requirements to have all the materials to be able to actually issue and cast a ballot in our election system. And then the other major costs are the intangible barriers. And this has been the main focal point of my scholarship. These intangible barriers include information necessary to make decisions. The sense that you have a sense of civic duty in our system, a sense that you have a stake in our system, which for many marginalized groups in our society, they do not have any of these intangible benefits from voting. And so therefore they have often been deterred from voting, feeling that the voting doesn’t make sense for them or their lives because they derive to gain very little from voting. And so those are kind of the structural systems that are the barriers to voting. And the structural systems that have to do with it is a political class of candidates and office holders who are often quite detached from marginalized communities and therefore are not particularly attendant to their interests when they govern, or when they campaign. And as a result, these communities remain marginalized during election seasons and as a political process, as an operation.
HEFFNER: Is the most fundamental question social and economic mobility and being able to access the polls, is that really the most salient, direct correlation with voting ultimately?
ROSS: I think that there are, it’s an important correlation. I don’t know if it’s the most important one though. The access to the polls is quite important. Access to the polls in a way that is cost effective, in a way you can get to the polls during a day in which you might work an 8 to 10 hour shift, in which you might need an ID in order to vote. Those are important inequities and barriers that exist with respect to voting. But I still go back to the point that for many of these individuals, they do not have campaigns and candidates that are attendant and focused on their needs and interests. And to the extent that they, as marginalized voters, are not seeing candidates that are responsive to their interests, that acts as a bigger psychological barrier to voting because their thinking, well, why should I vote if we do not have these policymakers are attendant to our needs and interests. And I think that that contributes greatly to the social and economic inequities we see both in participation rates and also in responsiveness by political officials to members of marginalized communities.
HEFFNER: Would you say that there was an upward trajectory in terms of the participation of black and brown communities that had been barred from accessing democratic function? And at a certain point over these last decades, one political party, it used to be the Democratic party, but now it’s the Republican party who, whose M.O. and operating policy and philosophy is to restrict access. At what point do you think that the Republicans took ownership of this as a systemic formulation to deny participation after years of landmark progress?
ROSS: Yeah. It’s interesting to just kind of see how the parties have realigned. We saw after the Reconstruction Amendments, it was the Radical Republicans and Republicans that were really pushing for greater access to the polls and access to voting for minority communities, black and brown communities, particularly formerly freed slaves in the South. But when we got to the 19 over the course of the 20th century into the 1960s, we saw Democrats take ownership over this issue in seeking to expand access to the ballot. It started really with FDR in terms of a policy that was really more focused on working class individuals and the context of the great depression, but then it shifted over time to a focus on civil rights during the 1960s, and you saw Kennedy place some focus on it placed on attention to it, but then you saw Lyndon Johnson really focused on it at the impetus of the civil rights movement led by Martin Luther King and others.
And at that time you saw Democrats take ownership over this issue. And Republicans start to see the fact that these black and brown communities tended to vote Democrat as a threat to their political power. And so over time you saw Republicans seek to attract white voters who tended to be, on the basis of, you know, dog whistle politics, and often foghorn racist politics as a way to attract them over to their camp. And the Republican party became more and more so over time the party of racial division that culminated with the presidency of Donald Trump in which now the calling card of the Republican party is to stoke racial divisions as a means to secure greater white votes and hopefully suppress and depress African American and other minority group voting. And so it’s kind of been a progression over time that we’ve seen in our history that has had troubling implications, that has troubling implications for the future of our democracy that is I think inevitably multiracial, but for some people that multiracial nature of the democracy is perceived as a threat rather than an opportunity.
HEFFNER: Well take us back to the constitution and the original sin of slavery. You know, there was a possible trajectory in this country in which the Voting Rights Act and the civil rights legislation in the sixties were secure enough to advance social capital for the inclusive multicultural society you’re describing. And that would not have to be resurrected or foundationally re-secured through what’s being discussed now as the John Lewis Voting Rights Act or HR 1, but it is clear to a great many Americans that those erosions of the Civil Rights Act, the Voting Rights Act have made it necessary to embark on new change. But then again, ultimately, that legislation is going to be interpreted by the Supreme Court and through the United States constitution, so if you are espousing, you know, advocating for legislative updates to what were considered landmark legislative acts that have not held up their end of the bargain, then, you know, isn’t this a kind of circular approach and should we not be approaching more fully the text of the constitution and the body of the Supreme Court?
ROSS: Yeah, I think we have to think about it from both the text and the Supreme Court decision-making. From the perspective of the text of the constitution, we have to go back to, in a sense, first principles and thinking about what Reconstruction Amendments were designed to do. And my belief that these Reconstruction Amendments were designed to do, were designed to dismantle this idea that this is a white man’s government. This is a government for the white man, of the white man, by the white man. Those were the Democratic, those were the principles that the Democratic party of the 19th century was espousing. And for which the Radical Republicans were rejecting and repudiating through the Reconstruction Amendments. So if we reconsider and rethink these amendments through this particular lens, we see the value and importance of integration in our political society, integration in our legislative units, integration within who participates in the political process, in that when we reach a point where there’s great disproportionality in who participates, who holds office, that is undermining and undercutting the text of the constitution. And then we need a court to recognize this. The court has kind of taken on a more narrow perspective on the constitution and the Reconstruction Amendments, seeing them as really tools to defend against classifications on the basis of race, rather than something that is designed to help and support and to secure the equal rights of subordinated, historically subordinated communities. And in the Supreme Court, to the extent that they re-understand the text and use the methodology that they greatly praise, which is an originalist methodology and look to what the Framer is and what those who proffer these Reconstruction Amendments were designing, were trying to do, they would recognize the value and importance of interpreting the constitution in ways that would promote integration and anti-subordination. Those causes that have been, for lack of a better term, subordinated within the court’s Supreme Court jurisprudence.
HEFFNER: Do you think though, that the John Lewis Voting Rights Act and HR 1, or For the People legislation, are they strong enough statutorily to hold up? I think you should explain to our viewers and listeners about severability and whether or not some of that legislation could stand, even if it were struck down by the Supreme Court if certain states were to sue the federal government for authorizing provisions of HR 1. But what those pieces of legislation are attempting to do, are to re-introduce fairness into our economy and democracy, I mean, and to combat the inequality. But I want your sense as to whether or not those, the provisions in these potential acts are symbolic, or if they are formidable enough to withstand legal scrutiny.
ROSS: Yeah. They’re important steps. They’re important steps to revive features of the Voting Rights Act that were rendered moot by the court and the Shelby County decision. And what they would do is they would provide protection against the adoption of laws that discriminatorily suppress the vote, the many laws that we’re seeing, I think since the beginning of the year, we’ve seen 380 bills introduced, designed to restrict the vote, and many of which have a racially disproportionate impact. And it reminds me of a saying, or a quote from Justice Ginsburg’s opinion in which she described the fact that, you know, we are pretending like there are no problems, there’s no rain because we have an umbrella over our head. But once we remove that umbrella, we will feel the rain and the rain that we’re feeling right now is the efforts of states to suppress the vote. So the John Lewis, HR 4 Act is a critical step in the right direction. But my concern is that the Supreme Court will not see it as legislation that’s permitted under the constitution. To the extent that the John Lewis Act is focusing on those, those laws that have a disparate impact, a racially disparate impact, and, the court says that the constitution does not recognize, and that the Congress has not have the authority under the constitution to enact laws that merely prevent racially disparate impact, then the John Lewis Act loses a lot of its teeth to the extent that you can only invalidate or prohibit laws that are intentionally discriminatory, which requires that you have some smoking gun evidence of discrimination in the adoption of these laws, then the John Lewis Act is going to have minimal effect on resolving or protecting against those discriminatory voting laws.
So that’s my particular concern. And there may be severability in terms of perhaps they sever out that disparate impact provision and preserve the rest. But I think without a provision that protects against disparately impactful laws, I don’t know if there’s going to be much worth saving that will have a formidable effect, anything more than symbolic effect on redressing the many challenges to voting and voting rights that we face in this country.
HEFFNER: What about HR 1?
ROSS: HR 1 is an important bill, and I think it has actually more chances of being sustained in the Supreme Court. The reason that it is, is because it’s more universal in orientation. It’s not really focused on discrimination it’s focused on protecting voting rights in a more universal way. So it’s providing for universal early voting, a universal provision for absentee voting, right, that makes it easy to access and easy to use. It provides for independent redistricting commission that’s designed, commissioned throughout the country, that’s designed to limit the opportunities to engage in gerrymandering of different sorts, whether racial or partisan orientation. And the difference between this bill, HR 1 and HR 4 is that HR 1 is, as pursuant to Article One, Section Four of the constitution, which gives Congress the authority to regulate the time, place, and manner of elections. Whereas HR 4, it’s primarily under Section Five of, of the 14th Amendment Section Two and the 15th Amendment, which is let’s just, which has parts of the constitution that give Congress the power to enact legislation, to resolve problems with equal protection. The problem with these bills, as in so far as they are enacted pursuant to Section Five, of the 14th Amendment for example, is that the court has interpreted the Equal Protection clause so narrowly that it gives Congress very limited power to remedy discrimination, but HR 1 does not run into that problem, since it’s pursuant to a different provision of the constitution that gives the Congress broader power. So there are opportunities that are available. I think HR 1 is a formidable bill that can really redress major problems of voter suppression and voter discrimination that in a more universal manner. But I think that there’s a more important role that HR 4 would play as well.
HEFFNER: So do you think that the conservative majority on the Supreme Court would attempt to use a kind of federalism argument, you know, that basically Congress is attempting to interfere with state’s rights to regulate their own elections. I mean, isn’t that quite foreseeable as a way that they could potentially strike down the heart, if not all of HR 1?
ROSS: Yeah, absolutely. I think that that’s what they’ll try to do, but the thing is that they’ll run into is the text of the constitution itself. And again, Article One Section Four says that states shall regulate the time place and manner of election, but Congress can alter those regulations. So, it’s specific and clear authority to Congress, to alter regulations and to set regulations with respect to time, place, and manner of elections. And therefore, unlike with respect to HR 4 in laws that are adopted pursuant to the Reconstruction Amendments, for which the court has narrowed the definition of the rights in those constitutional provisions and therefore narrow federal authority, the authority contained in Article One Section Four of the constitution is quite broad. And, and it was understood to be broad by the Framers of the constitution in so far as they saw Congress as playing an important supervisory authority over for the time, place, and manner regulations that states might enact. So I think that yes, these arguments to be brought, but I think that it’s going to stand up.
HEFFNER: And what would be their textualist counterarguments? So what would they use in the text of the constitution to, in effect invalidate what you just described, which is that yes, Congress does have the authority to regulate the manner in which elections proceed?
ROSS: Yeah, that’s a great question. What I think that I see them doing is perhaps relying more on tradition and history. One thing that has been the case is that Congress has not consistent, has not used Article One, Section Four as a base of authority that much in its history. And it has deferred, traditionally, to state exercises of power, without exercising supervisory authority. So I’d see the opponents making the argument that since Congress has not consistently and traditionally exercised its power, it has ceeded some of this authority to the states. And therefore in so far as Congress is seeking to exercise that power now, it’s doing so in an impermissible manner, because traditionally history suggests that states should be able to exercise that power. But again, that runs afoul of the text of the constitution that is quite clear, and there has been federal legislation, and that has been inactive pursuant to Article One, Section Four that has withstood judicial scrutiny.
HEFFNER: Right. So was the Emoluments Clause, I mean, the Emoluments Clause was right plainly in front of them, and the Roberts Court decided not to adjudicate, not to review it, even though it’s plain in the text for four years, just ignored it. So we know what we’re dealing with. That leads me to ask you Bertrall, whether or not this is all circuitous, and I don’t want to say futile, but if we’re talking about a Supreme Court that’s going to deny legitimacy and constitutionality to these pieces of legislation, namely the Lewis Voting Rights Act and HR 1, then isn’t it really in the province of Supreme Court reform that any of this kind of insistence on equality in our constitution and our democracy and our economy is going to be formalized and implemented?
ROSS: It could be, to the extent that the court is insistent on acting in an extra-constitutional manner and not following constitutional texts and requirements, and ultimately deciding on its own what these constitutional provisions mean, right, based on their own subjective value judgments. Then we’re in a place where we have to start to rethink the Supreme Court, because to the extent that the Supreme Court is getting too far out of touch with the constitution and with the popular values, then we’re in a worrisome state because the constitution has always suffered from this counter majoritarian problem in the sense that it’s an unaccountable, unelected institution that should play a limited role in our democratic system. But to the extent that it goes and engages in broad base invalidation of laws that have a strong constitutional basis, then it’s falling out of line with its function and its purpose. And it suggests that maybe there needs to be tools and instruments or means and mechanisms to make sure that the court stays in line, but still is able to exercise its independent authority to adjudicate the constitution, according to what the constitution perhaps means.
HEFFNER: Right. I mean, you know, I could go back to a decision a couple of years ago in which Roberts and company decided that it was okay for Ohio to remove voters from the rolls, just because they hadn’t voted.
HEFFNER: And I wonder, is it really implausible that Roberts and company would hold up the Georgia law banning water from being distributed around election sites or on lines for voting. And it’s not implausible. It it’s very much in the same vein of restrictive measures, suppressive measures. So I guess there’s a political and legal practical dimension of this, but that decision was during the Trump administration. Of course the Georgia law was just passed. Don’t we have enough proof points to determine that Supreme Court reform is going to be necessary and therefore, you know, that that should be undertaken simultaneously with passage of the Voting Rights Act and HR 1?
ROSS: Yeah. It’s a very interesting point. You know, what’s, I would say if it weren’t for the passing of Justice Ginsburg, and if it were the case that President Biden were able to replace Justice Ginsburg, and Justice Roberts was the median justice, the justice in the middle, I think I would have enough confidence in the court acting in a self-restrained manner because I think that Justice Roberts recognizes the institutional role of the court and the threats to its legitimacy from acting in particular ways. But with this court, I am much more concerned, because Justice Ginsburg was replaced by Justice Coney-Barrett and the conservative shift in the court, a shift in the court in a very conservative direction, we could be at a point where if the court decides to engage again in broad-based rejection and repudiation of laws that are accord with the constitution that seed partisan orientation, then it suggests that we would need that type of reform to really get at the particular problems and be able to advance, you know, our democratic rules and democratic policies, and then create an inclusive integrated democratic system. So it might be the case that we need them to go hand in hand, but I’m not sure that President Biden has gone that route.
HEFFNER: Right. I mean, there’s a political challenge there, but there’s also a captive public alert to the fact that you’re banning drinking water and distributing water around polling sites. And does it take a current court to invalidate that, that Georgia law to say, okay, they’re, they’re recognizing this has gone too far, or does it take, on the other hand, them upholding the Georgia law to recognize that they are, you know, they are legalizing Jim Crow and, and that’s what remains to be determined.
In the few minutes we have left Bertrall, in your lecture, your, Hugo Black lecture, you also talk about income and specifically the representation of our government and the plutocratic class. You go back into history and look with kind of perspective at this question of whether the bodies that represent us, have represented us, and I want you to tell us what you found in terms of, you know, the unprecedented income inequality and wealth inequality that is represented both in society and in our representative government that has not always been true, right, in terms of our elected office holders not being billionaires and you know, and also not having a decision like Citizens United, which, you know, allows them basically to bundle anonymous donors, in as much money as they want.
ROSS: Right. Now I’ll surprise you with a surprising statistic, right, the median net worth of a Congress member of the House of Representatives is $900,000 dollars. The median net worth of a Senator is about $3.2 million dollars according to latest statistics I was able to access. The median net worth of a person in the United States is about $94,000 dollars. Now at the founding of the country, there is this idea that we want to make sure the natural aristocrats are governing. The natural aristocrats were understood to be people of virtue, and public regard, but ultimately over time, that natural aristocracy came to be associated with a wealth aristocracy. And that wealth aristocracy has contributed to this inequalities that we are seeing politically, because if you’re deriving people from the wealthy classes to serving primarily in government, and they are so detached from the governed, in terms of their class background, and their greater relationships are with other people within their wealth circles that they live in, there’s going to be a lack of responsiveness and accountability to lower income classes in our, even middle income classes, in our society. And a couple of studies by Martin Jones and Larry Bartels confirmed this over the last decade or so that politicians are not at all responsive to the poor, very minimally responsive to the middle-class and very responsive to the wealthy. That is not how our republican system is supposed to operate, which is supposed to be grounded in this idea of equality, political equality, that’s supposed to lead to some sense of economic equality.
HEFFNER: And just in 30 seconds, you know, many of our founders were landowners and slave owners too, who had wealth, but there was a more heterogeneous sample of the haves and have nots in the original founding and in the first generations of our representative government than in the last 50 years, is that accurate?
ROSS: That’s absolutely accurate. And what we had at the founding was we had actually a pretty economically compressed society in a sense that is very different from England, which had wide inequalities. What was great about the United States is that we started off on a relatively equal position. There is surely the economic elite and the economically destitute, but for the most part, we started off in an equal position. But that inequality just has grown over time to the point where we are in a system in which the plutocrats govern and the rest are governed.
HEFFNER: Bertrall Ross, please visit his lecture at the Albritton Center on The Constitution, Democracy and Dconomic Inequality, the Hugo Black Lecture. He’s a professor, the Chancellor’s Professor, at UC Berkeley Law. Thank you so much for your insight today.
ROSS: Thank you for having me. It’s great being here.
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