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Sometimes it's a little disconcerting to realize that an idea you thought was obvious may actually be ahead of its time - or that the people around you, whom you respect, may be behind the times.  Such seems to be the case with what to me is just straightforward common sense: That judges ruling on the Constitutionality of a law must actually ground their decisions in the Constitution to be legitimate.  In other words, that the role of judges in a free, constitutional society is not "lawgivers" in the ancient sense of Roman magistrates who could rule however they pleased without adhering to professional legal doctrines.  There is no "Divine Right of Judges" that makes anything they say, no matter how groundless or abusive, a valid addition to the corpus of US law.  The authority of a judicial ruling comes from its foundation in the social contract, not the other way around.  So come on, folks, this is basic constitutionalism, not some radical left-wing doctrine cooked up in Abby Hoffman's imagination.

1.  Not everything is an opinion.  There is such a thing as reality, and human beings can make statements that accurately reflect it to a reasonable extent.  If you find anything remotely objectionable in this statement, you're on the wrong side of politics because reality has a liberal bias and liberals have a pro-reality bias.  Furthermore...

2.  Judicial rulings are not "opinions" in the normal sense of a person arbitrarily expressing their preferences and perceptions: They are professional actions with tangible consequences, and derive their authority exclusively from being grounded in law and previous precedents also grounded in law.  So a court cannot rule the Constitution unconstitutional, arbitrarily expand its own authority or contract the authority of other branches, rule that 2 + 2 = 5 or that up is down, or "interpret" that the Constitution really meant the exact opposite of both its letter and spirit.  If they were to issue such rulings, they would have no authority behind them because...repeat after me...courts derive their authority from the law, not the other way around.

But, you might ask, if courts are the ones charged with interpreting what the law is, whose legal opinion is being used to state that theirs is lawless?  Well, ours.  The people's:

3.  The Constitution is not an abstruse set of commandments sent down from heaven - it is a social contract that most people can reasonably understand, at least as it pertains to their own rights before the law.  And what that social contract tells us is that the citizenry may not be discriminated against in voting on the basis of race, and Congress has the authority to pass what it deems to be appropriate legislation guaranteeing that (Amendment XV).  

When a court decision flies in the face of that guarantee and the authority granted to enforce it - and what's more occurs as a brazen and shameless partisan tactic to skew upcoming elections - there is no authority behind that decision.  A court of law minus the law might as well be a tennis court for all the relevance its arbitrary rulings have for the legitimate process of government in this country.  Decisions like the recent VRA ruling are radical and unprecedented in that they have zero legal foundation - not even something one could call sophistry.  They are a house of cards constructed on the lawless majority's own arbitrary rulings, with nothing but thin air connecting them to the US Constitution.  

This has, frankly, never happened before in American history: Even infamous rulings like Dredd Scott and Plessy v. Ferguson were outrageous largely in being morally bankrupt and Pharisaical interpretations of the Constitution rather than being utterly arbitrary and fictitious.  So, whether anyone wishes to acknowledge it or not, we are in the midst of a Constitutional Crisis - and unlike the proverbial war where no one shows up, one side has most definitely shown up for this one.  So unless we show up as well and acknowledge that we are in the midst of a crisis, it will simply be decided by default in favor of the lawless faction.  More decisions like Citizens United and the VRA ruling are guaranteed to follow, and legislation addressing them will either be perpetually obstructed or itself struck down.  In the miraculous case that Constitutional Amendments are passed, they will be ignored or malignantly "interpreted" into oblivion.

So it's our choice whether that's the future we want - whether we are in such a rut as citizens that even demanding acknowledgment of the problem is just too frightening.  Because if we pretend there is a "Divine Right of Judges" or shrink from the task of demanding law-abiding courts because of the difficulty and complexity involved, we might as well just tell these judges not to bother offering such ludicrous excuses for their rulings in the first place: Just have them issue terse orders telling the nation what they command, accompanied by four words that embody the simplest of all legal reasonings:

Or stand up for common sense and rule of law, and get these crooks impeached before they start ruling that losing elections is a violation of Republicans' equal protection rights.  Sign the Change.org petition demanding Congress and the President condemn the VRA ruling and pursue impeachment of these so-called "Justices."  This is our country, and the Constitution that gives these people their authority is a social contract with us.  The conservative majority of the Supreme Court violated that contract with the VRA ruling, and either we have the basic clarity of mind and courage to admit that they're the problem or we should just stop pretending to have any intention of succeeding as a progressive movement.  

If you're not on board with this, just rename whatever legislation you're pushing as "Future SCOTUS Strike-down #4331," and whatever Constitutional Amendments you're pushing as "Another Amendment to Be Ignored By SCOTUS."  It would be more honest than continuing with the charade that you intend to change anything.  Or take the oh-so-radical step of acknowledging the simple facts of the situation, and acknowledging what the task before us is regardless of how hard it is.  No one's asking you to storm the Bastille or the beaches of Normandy, just admit that the current SCOTUS majority is the problem and at least rhetorically commit to addressing it.  The petition is 23 signatories short of the 100 mark, so let's get there and then see where to go from there.  Reject the "Divine Right of Judges" and demand a law-abiding Supreme Court.  

Poll

Should at least 1 of the five majority Justices be impeached?

62%17 votes
37%10 votes
0%0 votes

| 27 votes | Vote | Results

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Comment Preferences

  •  Tip Jar (8+ / 0-)

    Sign the petition to demand a law-abiding Supreme Court.

    by Troubadour on Sun Jun 30, 2013 at 02:56:24 PM PDT

  •  I.think there's an easier remedy than demanding (7+ / 0-)

    impeachment; congress needs to go back and make new factual findings to support preclearance.  whether the judges should be impeached or not, it's far, far easier to get an updated VRA.  and this isn't academic: the ability of citizens to participate in the selection of their government, the very essence of democracy, hangs in the balance.

    its not to say impeachment isn't warranted or important, but the utmost priority has to be passing a VRA that will be immediately enforceable.  

    •  (t&r because this very well written (2+ / 0-)
      Recommended by:
      Troubadour, psnyder

      and a very important subject)

    •  I agree we should push for legislation. (3+ / 0-)
      Recommended by:
      johnny wurster, salmo, psnyder

      It's just also very important we recognize the fact that this SCOTUS would find some way to strike it down.  Wouldn't matter how legally air-tight it is: If meaningful legislation were somehow passed through this unelected Republican House majority before the 2014 election, the GOP would file suit, the Roberts Court would agree to hear it before November 2014, and they would hand down their opinion striking down the key provisions well before the election.  

      So just pursuing legislation is not a good idea unless it's accompanied by a recognition that the precipitating ruling was illegitimate.  Because if we pursue new law and fail, but have implicitly conceded the legitimacy of the ruling, we've lost everything - basically total surrender.

      Sign the petition to demand a law-abiding Supreme Court.

      by Troubadour on Sun Jun 30, 2013 at 03:14:30 PM PDT

      [ Parent ]

      •  maybe its because I'm a lawyer and have, (6+ / 0-)
        Recommended by:
        grover, salmo, thestructureguy, zenox, psnyder, elmo

        to some extent, drunk the koolaid, but I think a new VRA passed in line with the court's reasoning would be found constitutional.

        what would probably satisfy both you and me would be a constitutional amendment to enshrine voting as an enumerated right.  (im happy to note that, in a diary on this subject a few months back I scoffed at the notion, arguing it was unnecessary, but as it turned out I was totally wrong.)

        •  Yeah, but we'll get that rewrite when pigs fly (1+ / 0-)
          Recommended by:
          Troubadour

          As in all good lies, there is an element of truth in Roberts' assertion that things have changed since 1965.  Perhaps in a better world we could all agree that the sort of gerrymandering, voter ID'ing, voting machine restricting, and early voting and hours of voting cutting various Republican controlled states and localities are trying are different from, but just as UnAmerican as were the Jim Crow South's tactics.  In this world though, that same party controlling the House and the Supreme Court will let legislation pass acknowledging that and doing something about it shortly after pigs fly.  Until we all see winged pork, i wouldn't put much stock in a correction strategy that starts with bipartisanship.  

          I think it was Johnson who said, "If you have them by the balls, their hearts and minds will follow."  And indeed, Johnson demonstrated his mastery of that persuasive technique in the passage of what may have been his most important achievement.  The effort to recreate the VRA have to start with a strategy to get the certain opposition to enacting a fix by the short and curlies.  It seems to me that the weak point for the Republicans is their donors' government contracts.  Cut those, investigate waste, fraud and corruption in the wingnut finance system and make it stick, and the screams will quickly turn to an understanding of the need for more democracy.  

          •  More than an element (0+ / 0-)

            I live in a preclearance county. Back in 1965 it was 50% Jewish, with the other major ethnic groups being Italian and Irish. There was a small Hispanic (Puerto Rican) minority and little African American community. Today, it is 50% Hispanic, with large African American communities, significant immigration from the English and Spanish Speaking Caribbean as well as from Eastern Europe (Jewish and Muslim), South Asia (Muslim), and sub-Saharan Africa (Muslim). Oh yes, there are still a few of the old Jewish, Irish, and Italian areas left.

            And during that time the county has gone from 3:1 Democratic to 11:1 Democratic.

            You are telling me that the use of 1965 data make any sense at all?

            •  And why was pre-clearance still required? (1+ / 0-)
              Recommended by:
              Troubadour

              A change in demographics is not the issue - persistent patterns of discrimination are what should be looked at.  You haven't described the connection between demographics in 1965 and the discriminatory patterns that got the county on the pre-clearance list.  You also haven't described why the shift in demographics means that discrimination has ended, if it has.  You seem to be asserting that the discriminatory administration of voting laws was being done by Democrats in 1965, and if it is persisting, it is still being done by Democrats who now enjoy an 11:1 advantage (it's not clear whether this is in registration, voting, or some other measure).  

              The 1965 patterns got a number of localities on the pre-clearance list.  That list has changed over the years.  A number of those localities have been removed from the list by demonstrating that they no longer discriminate.  By your comment, I am assuming that your county was not one of those.  Why not?  Really, what's the problem in making that case for removal from the pre-clearance list?

              The Congress compiled an extensive record at its last reauthorization of the VRA.  To suggest that those 15000 pages of record are simply a rehash of the 1965 data is a strawman argument, absent a far more comprehensive set of citations and explanations than your comment presents.  

        •  Well, I don't see what you're basing it on (1+ / 0-)
          Recommended by:
          salmo

          to think that this Court would sustain any legislation obliterating the electoral advantage they issued this ruling to create.  We know they don't stick to their own reasoning when it becomes convenient - the four of the five who were in the minority on the DOMA ruling said the exact opposite in that ruling that they did in the VRA ruling.  And if they'll ignore the 15th Amendment to the Constitution, I'm not sure what good passing another one saying "We really, super-duper MEAN IT this time" would do.

          Sign the petition to demand a law-abiding Supreme Court.

          by Troubadour on Sun Jun 30, 2013 at 04:16:07 PM PDT

          [ Parent ]

  •  Judicial Truth (4+ / 0-)
    Recommended by:
    Troubadour, salmo, Victor Ward, DFWmom

    If a decision is not based in reality, then it's an unjust decision.

    I had a federal whistle-blower trial with no jury in federal court.  The judge made up his own facts (I was barred from bringing evidence and what I was allowed to bring, he pretended didn't exist) and then wrote 23 pages of stuff and law he made up, without using one case from the entire universe of caselaw.  Then he made the decision unpublisned, so it was not binding on anyone but me and the government agency.  It was an unjust decision.  I call it judicial gaslighting.  He rewrote my reality. You might think it only happens in the movies, but it happens in real life.

    Another example of why "Justice must be seen to be done and seen to be believed."

    Shine like the humblest star.

    by ljm on Sun Jun 30, 2013 at 05:00:27 PM PDT

    •  Your experiences highlight the fact that (2+ / 0-)
      Recommended by:
      ljm, salmo

      this is part of a larger struggle to bring the judiciary in general within the fold of constitutional accountability, so really the importance of standing up to the Roberts Five on this case goes well beyond them.

      Sign the petition to demand a law-abiding Supreme Court.

      by Troubadour on Sun Jun 30, 2013 at 05:15:23 PM PDT

      [ Parent ]

      •  Start with unpublished decisions unconstitutional (3+ / 0-)
        Recommended by:
        Troubadour, salmo, Victor Ward

        Judges would not be to able cover-up their shenanigans.  Push for jury trials.  Judges can't make themselves the fact finder so they can make up their own facts.  Push to end sovereign immunity.  People shouldn't be able to do illegal things, just because they work for the government.  Find ways to end the use of secrecy.  Something better actually be a state secret to use the term "state secret."  Parties to an action should be able to argue judicial bias to get a different judge.  Currently, only judges can recuse themselves by admitting they have a bias.  Clearly, they don't do that, but stay on cases that nobody can make them relinquish.

        Shine like the humblest star.

        by ljm on Sun Jun 30, 2013 at 05:44:01 PM PDT

        [ Parent ]

  •  Well written and argued. t&r (3+ / 0-)
    Recommended by:
    Troubadour, salmo, palantir

    "Corruptio Optimi Pessima" (Corruption of the best is the worst)

    by zenox on Sun Jun 30, 2013 at 05:02:54 PM PDT

  •  really? (0+ / 0-)

    You argue in favor of reason and fealty to the Constitution and then say:

    Decisions like the recent VRA ruling are radical and unprecedented in that they have zero legal foundation - not even something one could call sophistry.  
    there is plenty of "legal foundation" for the ruling and, as in any ruling, interpretations are there for dissenters and majorities alike.

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