06/30/2013 10:04 pm ET Updated Dec 06, 2017

BOTH SIDES NOW : Gay Marriage, Black Voters and Roberts's Radicals-in-Robes


Reagan and Erickson debate judicial matters after the DOMA and VRA decisions. But there's a larger subtext -- is Obama's center-left country and Roberts's hard-right Court moving toward a collision? Then, Obama tries to cool off the planet and the frenzy over Snowden.


Hoffa's still dead. The Heat are still NBA champs. But this past week saw major news made on issues of love, race, climate, immigration, abortion, asylum. For each, Ron Reagan (of MSNBC) and Erick Erickson (of FOX and are well paired.

*On Marriage Equality. How did same-sex marriage go from unthinkable to unstoppable in Bowers v. Hardwick in 1986 to Windsorin 2013?

On the DOMA and Prop 8 decisions, Ron observes that "all depends on Kennedy because the court is so polarized," lauding the overturning of federal discrimination against married same-sex partners but exhibiting disgust at Scalia's dissent mentioning bestiality. "What is it with these people and animals?"

Erick agrees with the DOMA majority (though on states rights grounds) but attacks the Prop 8 decision because "the Court eradicated direct democracy" by allowing officials to overturn a popular vote or law simply by not appealing to federal courts.

Ron hits back: What if Georgia again banned inter-racial marriage after a popular vote? Can majorities automatically deprive minorities of basic rights? Erick answers that, in his view, a) you can't compare bans on gay marriage and miscegenation, b) "the issue isn't gay rights but the stability of children and families" and c) "the state can't change the terms of marriage since it didn't create marriage." Ron disparages any invocation of biblical law "since Solomon had 700 wives" and concludes that "the fundamental issue is equality in America."

They agree, however, that next the Court -- David Boies puts it at five years or less -- will likely rule that the 14thAmendment's Equal Protection Clause protects Marriage Equality in the 37 remaining states banning it. Erick adds that, therefore, conservatives should now start organizing at the state level to protect religious rights. Again Ron demurs since "churches can't be forced to marry same-sex couples."

*On Voting Rights Act. The two panelists hew closely to their favored opinions in the Shelby County case. Erick agrees with Scalia's comment during oral argument that the VRA enshrined "racial entitlement" and Roberts's opinion that the law was now based on 40 year-old data; he cites numbers of how black turnout in some Southern states equaled or exceeded white turnout.

At the mention of Scalia, again Ron jumps out of his seat (figuratively): "Yeah, look how hard it was to end white privilege in America!" He points to how white Mississippi office-holders tried to cancel a local election when too many blacks registered and how Congress did in fact cite new data in reauthorizing the Act in 2006, data Roberts conveniently ignored.

The two get into a spat over recent Voter ID laws in general and Florida's very consequential use of a felon list to disqualify many minority voters in 2000 in particular. Ron: "they used a felon list to disqualify black voters." Erick: "they used a felon list to disqualify felons." Ron: "disqualify black voters." Erick "felons."... after a few rounds of this, Erick notes that since a majority of those on the felon were black, it had that affect.

Host: 40 year-old data? Hmm. How old is the U. S. Constitution whose 'original intent' constitutional conservatives cite?

Roberts clerked for Chief Justice Rehnquist, who as a Supreme Court clerk himself in 1952 argued in a memo that "Plessy v. Ferguson was right and should be affirmed."

Also, Rehnquist is quoted in Jeffrey Toobin's The Nine telling a colleague, "Don't worry about the analysis and the principles in the case. Just make sure that the result is a good one this time around -- because those principles you announce will be ignored in the next case." (p. 276). Similarly, Roberts himself as a young lawyer in President Reagan's DoJ unsuccessfully argued that the VRA should not be allowed to apply its "disparate impact" standard, a view that would have gutted the law 30 years before he finally prevailed.

It now seems more obvious than ever that he was pulling he Senate Judiciary Committee's legs at his confirmation hearing when he famously said that he'd be merely be an "umpire" calling ball and strikes and not a judicial activist.

To arrive at his opinion, the Chief Justice had to ignore a 98-0 Senate vote, 330-33 House vote, signature by President Bush 43, congressional data about more recent discrimination, recent Voter ID laws and the express words of the 15th Amendment specifying that no one could be denied the right to vote "on account of race, color, or previous condition of servitude" and that "Congress shall have power to enforce this article by appropriate legislation." It's not everyday that a Chief Justice ignores a Civil War constitutional amendment and a congressional law that Ted Kennedy and Strom Thurmond voted for.

For good measure, Justice Scalia joined in the Roberts opinion, even though the day before he had condemned a pro-marriage quality decision because it arrogantly elevated the Supreme Court into some kind of kingly legislature!

Four points:

  • Whatever one's political beliefs, it is impossible as a matter of logic and law not to conclude that these two are epic hypocrites when it comes to judicial activism vs. deference to legislatures;
  • The real-world operational affect is to make it easier for states with a history of racial discrimination to block minorities from voting -- Bill Maher wasn't being funny when he said that the majority in Shelby County got away with "Racism 2.0" because, though they sent the law effectively back to the Jim Crow South, they shrewdly didn't actually use Paula Deen's N-word;
  • Given the results of 2012 and the rising tide of minority voters, is this how the GOP wants to be known on the fundamental issue of minority voting? and will Obama's in-process Voting Rights Commission and the Congress now come up with a bi-partisan law to re-establish a new pre-clearance standard or enact universal voting once-and-for-all?
  • The Roberts Court is getting dangerously close to a constitutional crisis by overturning a century of law to allow money to drown democracy in Citizens United, nearly overturning Obamacare despite the congressional taxing power and seeming to radically narrow the Commerce Clause in the process, and possibly abolishing Affirmative Action. According to judge and scholar Richard Posner, five of the most conservative justice in history are now serving together on the Court. Hence a consistent flow of pro-corporate, anti-minority, anti-consumer decisions.

In a center-left country (majorities for President, Senate, House), five usually hard-right radicals-in-robes seem to be itching for a constitutional crisis of the kind Roosevelt faced before Justice Owen Roberts (that was his name), in the 1937 Parrish case, made "the switch in time that saved nine."

*On Climate Change. Thoughts on Obama's big Climate Change speech at Georgetown where he laid out an anti-carbon plan because he wouldn't wait for more debates against "the flat earth society"?

Erick explains how he has annoyed both sides of the debate since he agrees that the planet is warming and human activity is playing some role..."but what we do doesn't matter because China and India [will do what they want] so why bother?"

Is Ron a "climate fascist," a phrase Erick has used on Ron explains that "I'm a climate realist...You go to a plumber for plumbing work and climate physicists who are nearly unanimous on climate change."

On Obama's statement that he'd ok the Keystone Pipeline if it didn't "substantially exacerbate" carbon in the atmosphere, Ron assumes that it's a hint Obama will split-the-baby by combining his EPA anti-carbon initiative with the eventual approval of Keystone. "Does 'substantially exacerbate' carbon mean globally or only in America?... When are we going to grow up as a species and take advantage of a fusion reactor [called the Sun] which gives off more energy than we can ever use?"

*On Snowden. Edward Snowden for now seems as stuck in limbo-land somewhere in the Moscow airport as his fellow-traveler Julian Assange is in an embassy in London.

The two panelists reach a rough consensus: each thinks that it was useful for Snowden to initially reveal two questionable NSA meta-data programs but both condemn his later leaks and flight to China and Russia. Both think he should now be brought back to face trial "like Ellsberg" (Ron)... who got off on the grounds that the Nixon administration had used illegal methods (burglary) to obtain evidence against him.

*On Abortion, Perry, Davis... a New Alamo?

As for the phenomenon of State Senator Wendy Davis filibustering Texas Governor Perry's anti-abortion law, Ron lauds her principled and effective stand, not to mention those sneakers! Erick argues not only that Perry was lauding Davis the next day at the National Abortion Rights League but also that Perry will get the "last laugh" because he's calling the legislature back into session. "If she wants to run as pro-abortion state-wide, good luck to that."

It depends on you define "last" in last laugh. Since Roe v. Wade has established a woman's right to choose until viability, it would seem that even this Court (or certainly one with more Obama appointees) would strike down such a Texas law. And then there are the demographic trend lines that indicate Texas will be a purple or even blue-ish state by 2020. Then the Alamo of 1836 may become a more modern metaphor for when new Anglos like the Perry-Dewhurst crowd lose their fort again to large numbers of Mexicans, this time who won't have to fire a shot.

Mark Green is the creator and host of Both Sides Now.

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