New Mexico Mercury

If anyone tells you again that voting in a presidential election is a meaningless exercise, remind them of June 2013 when the Supreme Court became once again, as it has off and on throughout its history, the most powerful branch of government, for good or ill.

As every student who reads the U.S. Constitution should know, a President nominates Justices of the Supreme Court, with the advice and consent of the Senate.

Who in the administration of Ronald Reagan could have imagined that their nominee, Anthony McLeod Kennedy, would have such a contradictory and potent influence on American history this week?

Reagan was hoping, I’m sure, that Kennedy would consistently support his other appointment, the arch conservative Antonin Scalia. But, as the fact of the liberty of conscience would have it, he has not – all the time.

In less than a week, the Supreme Court gave the upper hand to every racist, bigot, and small-minded xenophobe in the country by striking down a key provision of the Voting Rights Act leaving minorities to the tender mercies of state governments around the country, most egregiously in the South.

And a day later, the Court turned around and liberated millions of Americans from one of the more prejudiced and detestable federal laws ever written, the Defense of Marriage Act, and effectively put to rest the state of California’s heinous banning of same sex marriage. 

And the DOMA and voting rights decisions turned on the vote of one justice, Anthony Kennedy, nominated by one president, Ronald Reagan.

In the Voting Rights Act decision, Kennedy joined the foggy, politicized, partisan thinking of the Court’s reactionary ideologues, Scalia, Clarence Thomas (nominated by George H.W. Bush), Samuel Alito, Jr. (nominated by George W. Bush) and Chief Justice John Roberts, Jr. (nominated by George W. Bush).

In his majority opinion, Chief Justice Roberts wrote that  “voting discrimination still exists; no one doubts that. The question is whether the Act’s extraordinary measures, including its disparate treatment of the states, continue to satisfy Constitutional requirements.”

The Voting Rights Act’s 2006 version targeted states notorious for voting discrimination, making them report all proposed changes in voting laws to the Justice Department for oversight and approval.  Those states were Alaska, Arizona, Texas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, Virginia, and certain counties of North Carolina and Florida.

While Justice Roberts thinks that “the country has changed” as far as racial prejudice is concerned, it’s almost a dead certainty that those states have not, in seven years, suddenly become paragons of voting equality. They still contain swamps and cesspools of racism.

The five Justice majority said Congress should rewrite the Voting Rights Act to reflect modern American culture. The suggestion is a supreme act of hypocrisy as the majority knows full well that the current House of Representatives would never rewrite the Act in a way that would protect voters in those eleven states, most of which are of the political persuasion of the Justices themselves.

Minority voters are now defenseless against the racists in their state legislatures, at least until the 2014 midterm elections.  If there was ever a reason to pull out all the stops in that election season to realign the House, the neutering of Voting Rights Act this week is the reason.

The same four reactionary activist Justices that voted against a minority person’s right to vote, also voted to discriminate against people of the same sex who want to marry.  Anthony Kennedy’s conscience couldn’t apparently go that far,  declaring the Defense of Marriage Act (DOMA) unconstitutional and in violation of the 5th Amendment’s due process clause, and joining Ruth Bader Ginsberg,  Stephen G. Breyer, Sonia Sotomayor, Elena Kagan in the majority.

Ginsburg and Breyer were both nominated by Bill Clinton. Kagan and Sotomayor were nominated by Barak Obama.

DOMA, Justice Kennedy said, “humiliates tens of thousands of children now being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

For all its perversions of influence and tainting by money, democratic politics in America still has vast power over the lives of us all. As futile as voting may seem, this week shows us clearly that here, even now, every vote counts. And in 2014, perhaps, more than at any other time.