On July 9, 2013 Billy Corriher from the Center for American
Progress wrote a piece about Justice Clarence Thomas and his decision in the Shelby County v Holder case. The Shelby case was in regards to the 1965
Voter Rights Act and if it still applied to today. Under this act, southern
states were required to get approval from the Department of Justice if they
wanted to make any changes that would affect voting in those states[1].
In Mr. Corriher's article, he starts off by comparing
Justice Thomas to Justice Marshall, the only African-American's to serve on the
high court. The article starts out rather plainly and goes on to define the
different philosophies of the judges. Thomas is considered an 'originalist'
while Marshall believes the Constitution to be a 'living document.[2]'
Marshall once said of his judicial philosophy "you do what you think is
right and let the law catch up.[3]"
There is a sort of problem with this statement given the job of a Supreme Court
justice isn't to dictate the direction of the law, but to interpret it within
the confines of the Constitution.
The court decided it was no longer necessary to keep key
provisions of the 1965 Voting Rights Act given the changes in America in
regards to race. Also, given the context in which the Act was passed, it is no
longer relevant to American society. The Act was passed during a time when
racism was rampant across America and the Jim Crow laws were just being
challenged. Protests for racial equality were occurring across the US, not
exactly something are seeing now. Also, the justices ruled that there is to be
'equal sovereignty' between states. Corriher seems to think this concept is
false, or disagrees in some way. I'm not exactly how the government can treat
states differently in regards to voting laws while at the same time treat all
voters the same. This 'equal sovereignty' seems only logical.
Corriher then goes on to claim that "Justice Thomas and
the other conservative justices seem to believe that racism in voting is over,
or at least that Southern states have made enough progress that the preapproval
process is no longer justified." This is clearly a shot at the justices
and there are no statistics cited here to prove if there is still in fact
significant racial disparity in voting records. It is also crazy to believe
that the justices think racism in its entirety has disappeared. But just
because elements of racism exist in society, does that mean policy is to be
crafted for what may well be a slim minority? According Ilya Shapiro at the
Cato Institute, the court overturned the Act "[b]ased on 40-year-old data
showing racial disparities in voting that no longer exist.[4]"
So yes, southern states have made enough progress to have the preapproval
process removed.
Even though data seems to side with the justices, Corriher
then goes on to equate voting law changes as discriminatory, such as voter
identification, penalizing college students for voting at school and not at
home, and ending early voting[5].
It seems that any sort of restriction at all is discriminatory. After the
election all we hear in the news is how many people voted more than once, or
forged a name so they could vote numerous times.. The reason for these added
restrictions doesn't appear to be for the sole purpose of preventing a minority
class from voting, but to try and reduce fraud.
In another shot against Thomas, Corriher goes on to say that
the justice would also like to see preferential college admissions towards
minorities overturned. While to his progressive worldview this may sound
insane. But to someone who hold an 'originalist' interpretation of the
Constitution and believes in equal opportunity, this isn't a foreign desire.
Corriher goes on to end his article by saying that Justice
Thomas is undoing everything that Justice Marshall did to make our society more
equal. This again is another cheap shot at Thomas. If nothing at all had
changed between 1965 and now this may be a valid argument, but things have
changed. The court has recognized that. Data shows racial disparity in voting
has disappeared, and in order to ensure a 'free society' how can you punish one
state but not another? The Voting Rights Act in today's America no longer
levels the playing field, it only makes people less equal. It's a good thing
that Thomas is doing everything he can to ensure equality for all, even if it
means undoing some of Justice Marshall's work.
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