Swimming Against the Tide

-- By NicoGurian - 17 June 2015

Advocates for social justice face a Supreme Court openly hostile to civil rights, worker rights, and environmental protections, and just as openly subservient to corporate interests. A court that produces Citizens United and Shelby County is a court prepared to pursue its regressive agenda no matter what.

This is not, however, the first time advocates have faced such long odds. When Albion Tourgée and his colleagues agreed to represent Homer Plessy, they neither deluded themselves about the ideology of the judges on the court nor were naïve about the way power -- regardless of what the right “neutral” legal answer may be –- is wielded. Yet Tourgée went forward, determined not to accede passively to the assertion of white supremacy and equally determined to create a record for the future. Though he lost the case, Tourgée was able to convince Justice Harlan, whose dissent laid the foundation for the court’s decision in Brown v. Board of Education decades later.

I. What is to be done?

Knowing that there are both neutral reasons openly given and also cloaked power-based reasons for a court’s decision simply does not answer the question, applicable both in 1897 and today, “So what do you do when facing a court that is generally or always hostile?” Sometimes, of course, tools outside the courtroom are called for, such as grassroots political campaigning or legislative advocacy.

But there are other circumstances that demand that the strategy include aggressive, litigation-based responses. Section 5 of the Voting Rights Act had been an extraordinarily effective tool (it was that very effectiveness that made it a target of the Roberts Court). There is no doubt that the court’s decision in Shelby County was devastating to the voting rights of millions of Americans -- particularly black Americans in the former Confederacy. The decision was particularly disingenuous in arguing that the scourge of voter oppression had been cured years ago.

The response for lawyers is not to throw up our hands and give up. Rather, we must work to come up with creative ways to build a record of violations so strong that either a Justice Kennedy is persuaded to enforce the law (as he is from time from time) or else that many more people will come to understand that the court’s actions cannot be understood as neutral legal analysis.

One way for voting rights lawyers to be creative is in broadening their claims, even as they recognize the court remains hostile, including the hostility it showed in Shelby to the use of historical data.

II. Using Arlington Heights

There is, however, precedent for the use of historical data, as well as other aspects of official decision-making, as evidentiary sources to prove intentional discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267 (1977). Since intentional discrimination is in fact much closer to what many of these former Confederate states are actually practicing through their voter identification laws, the multi-factor Arlington Heights intent test might serve as a good foundation for bringing 15th Amendment claims side-by-side with Section 2 cases.

Arlington Heights laid out several factors that could reveal an invidious purpose behind official actions. One such factor is if an official decision represents a “substantive departure” from normal procedural sequence, “particularly if the factors usually considered important” favor a decision contrary to the one reached. Id. The intrusive nature of voter identification laws represents a “substantive departure” from the normal perspective of conservative legislators to always oppose governmental intervention. For instance, the day after the Court decided Shelby County, Texas officials announced they would implement a voter ID law that had previously been blocked by Section 5 of the Voting Rights Act. Texas Governor Greg Abbot supports this measure, despite the fact that on almost every other issue he opposes government regulation. For example, his main talking points on his campaign website include “End Obamacare;” and “Rein in EPA.”

Another Arlington Heights factor is “historical background of the decision…particularly if it reveals a series of official actions taken for invidious purposes.” Id. Not only should voting rights lawyers looks backwards to practices from the time before Section 5, they should also look at the pattern of many states making multiple efforts to restrict the franchise post-Shelby County.

Interestingly, the presence of a disparate impact is another Arlington Heights intent factor, consistent with the principle that one intends the natural consequences of one’s actions. Impact alone is not enough but it can be powerful evidence. For instance, a month after Shelby County, North Carolina passed one of the country’s most sweeping voting restriction laws. A new report estimates that that these new restrictions reduced turnout by at least 30,000 voters in the 2014 election. Black voters were disproportionately affected: blacks comprised only 22 percent of registered voters but comprised 38 percent of the ballots that were rejected. This level of impact, along with the other factors, “should” be enough to prove intentional discrimination.

III. Audiences Outside the Courtroom

That argument may well fail of course. Yet the court is not the only audience for legal arguments. Arguments lost in court can still generate political activism. And, while many of us in the class readily accept the premises that judges can act for lawless reasons and that constitutional law is not a “separate subject,” many people do not. We should not write them off, and lecturing them directly about how power truly works is unlikely to make new allies. Perhaps more effective would be putting evidence in front of them that they expect would persuade a neutral court. If the evidence is rejected, it will then be easier to take that person to the next step of seeing a court’s political agenda.

Fighting back through creative legal arguments is not the only approach. But there is real merit in trying to do so. Having now begun to work as a social justice lawyer, I do not want to leave the arguments of the rights-deniers uncontested.

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