Republican Justices Should be Impeached for Striking Down Voting Rights Act Provisions
Read the 15th Amendment. The Supreme Court has no authority to second guess the Congress on voting rights and they violated the Constitution when they did.
In 2013 in Shelby County v. Holder, the Supreme Court Republican majority killed Section 5 of the Voting Rights Act, which required preclearance of changes in voting laws in a number of Southern States as well as parts of other states around the country. The ensuing result was a wave of voter suppression laws around the nation.
Now, as the Court blocks multiple lower court decisions enforcing other provisions of the Voting Rights Act, particularly Section 2, the Court continues its unconstitutional attack on voting rights.
And I emphasize unconstitutional, not merely wrongly decided, but a violation of the Constitution in second-guessing the law established by Congress.
But isn’t acting as a check on Congress the job of the Supreme Court?
In fact, whether judicial review was even intended by the framers of the Constitution is heavily debated, but even if you accept judicial review for many provisions of the Constitution, the 15th Amendment is different. Compare the words of the 1st Amendment to the 15th Amendment.
The Bill of Rights, including the 1st Amendment, was enacted to limit the power of the legislature and executive in specific ways, so there is a logic to having some other institution enforce their provisions. But the 15th Amendment, enacted in response to a rebellion by southern states and their continued denial of rights to freed slaves in the wake of that war, was about strengthening federal power and specifically Congressional power.
And it was no accident that the framers of the Civil War amendments (the 13th and 14th Amendments have similar language) gave that power to Congress, NOT the Supreme Court. After Dred Scott and other pro-slavery decisions had helped ignite the Civil War, the drafters of the 15th Amendment had a grave distrust of the Court as an institution and meant Congress to have the power to override state power as needed to protect voting rights.
The whole point of passing new Constitutional amendments was to overturn earlier perceived restrictions on Congressional power. This is why it is completely bizarre for the Republican Court in Shelby County to cite to the 10th Amendment protection of state sovereignty to overturn legislation passed by Congress under the 15th Amendment specifically enacted to override the 10th Amendment. In Shelby County, John Roberts would cite an early case NOT involving race-based voting rights for the proposition that “the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.” As if that was relevant to overriding Congressional power under the 15th specifically passed to give the Congress plenary power to fight racial discrimination in voting laws enacted by the states.
Notably, almost every subsequent Constitutional amendment was designed not to limit Congressional power but to strip states and the Supreme Court of power, including specifying the Congressional power to levy income taxes (the 16th overriding a contrary Supreme Court decision), taking the power to elect US Senators from state legislatures and giving it to voters (the 17th), requiring states to allow women to vote (the 19th), overturning state poll taxes (the 24th), and requiring states to allow 18-year olds to vote (the 26th).
The Supreme Court helped kill Reconstruction in a completely unconstitutional way in the 1870s - ushering in almost a century of Jim Crow - and Democrats in Congress should use their authority to stop the current Court from replicate their predecessors.
While judicial review was created by the Court in Marbury v. Madison, it failed to establish any check on its own power when it did so - unlike the Canadian and various other systems that build in the ability of their parliaments to override decisions by their supreme courts.
So that leaves impeachment and removal of Justices engaged in unconstitutional actions as the only judicial accountability that exists under our system.
While impeachment would be unlikely to lead to the removal of the anti-voting rights Justices on the Court, given Republican numbers in the Senate, the impeachment hearings would be a way to highlight the unconstitutional actions of the Court majority. And that process of delegitimzing the Court would set the stage for later action to expand the size of the Court to restore a majority dedicated to judicial deference to the elected branches of government.
The Republicans on the Supreme Court have become completely partisan actors at this point, so Democrats in Congress should treat them that way. Impeachment hearing would begin the political campaign to replace their majority in what has become an unconstitutional chamber for black-robed legislators.