Section 2 of the 1965 Voting Rights Act, as amended in 1982, proscribes any voting arrangement that “results in a denial or abridgement of the right of any citizen … to vote on account of race.” Courts, prodded by groups intent on maximizing race-conscious policies and minimizing colorblindness as a social aspiration, have radically rewritten this. They have changed the right to vote into an entitlement to arrangements that make likely particular election results.
This week, the Supreme Court preserved this perversion of the law. It affirmed that the VRA protects Black voters against the “dilution” of their power to achieve their preferred (presumably racial) election outcomes. The court said Black Alabamians are entitled to a second district configured to increase the probability of success by Black candidates.
The VRA was written to end voting measures involving racial discrimination; since 1986, the court has required such measures. This, even though Section 2 says that nothing in it “establishes a right to have members of a protected class elected in numbers equal to their proportion of the population.” Enacted in 1965, the VRA proscribed racist state practices. The VRA originally guaranteed equal access to ballots, and equality in the right “to participate in the political process” (emphasis added). But identity politics influenced courts’ construing of the VRA.
It has been wielded as a guarantee not of individuals’ rights but of the rights of racial groups that are presumed to think monolithically. In 1980, the court held that Section 2 prohibits only “intentionally discriminatory” government action. So, in 1982 Congress prohibited action that, regardless of intent, has a discriminatory “result.” Next, in a judge-created gloss on the 1982 amendment, the VRA was said to guarantee a “meaningful vote” — one conducive to producing a racial group’s presumed preference for representation by members of the group.
[Chief Justice John] Roberts, in Thursday’s decision, correctly described it as consistent with precedents. But being consistent with incoherence is no virtue. After the decision, progressives paused their denunciations of what they call the “imperial” court. Switching gears, they praised its imperious rewriting of the Voting Rights Act. They ignored the fact that its authentic purpose was simply to end racial discrimination in voting rules.
With its new ruling, the court has again reaffirmed the federal judiciary’s repudiation of colorblind law. And the court lubricated today’s slide into incessant obsessing about race. This is a sordid business.
Writing in the Wall Street Journal, Columbia University law professor Philip Hamburger explains the need to rein in the U.S. government’s censorship of – and censorship through – social media. Two slices:
The organization I lead, the New Civil Liberties Alliance, represents plaintiffs in Missouri v. Biden, a lawsuit challenging the federal government’s campaign to censor speech on social media. For years, officials at the White House, the Federal Bureau of Investigation, the Department of Homeland Security, the Central Intelligence Agency and other agencies have pressured tech companies to suppress “misinformation.”
Much of the targeted speech doesn’t deserve that Orwellian label. Some of the speech is truthful, and some is simply opinion that dissents from the government’s viewpoint. Yet even actual misinformation—with a few exceptions such as commercial fraud and defamation—is fully protected by the First Amendment. The government makes no claim that the speech it seeks to suppress is unprotected.
So how does it defend its actions? On May 3, the Justice Department filed a 297-page argument that reveals how so many officials could suppress speech with so little fear of violating the Constitution. The root of the problem is judicial negligence.
The Supreme Court has adopted doctrines that inadvertently erode the ability of officials to see that censorship is unconstitutional. Although the doctrines, when carefully considered by sophisticated judges, reveal the unlawfulness of the suppression, they have weakened the constitutional obstacles to censorship by depriving them of their demotic clarity. They even seem to invite game-playing by officials. So FBI agents and other officials imagine that censorship is permissible. And in defending the errant officials, the Justice Department echoes their manipulative reading of weak doctrine.
Supreme Court doctrine, however, dangerously encourages government to think it can use private firms to circumvent the First Amendment—as long as it doesn’t turn them into government actors. This is especially worrisome because it seems paradoxical and hazardous to say that private companies can be considered government actors. Many judges are reluctant to reach so perverse a conclusion, thus giving even greater leeway for privatized government censorship.
Americans hoping that President Biden’s agreement to sign permitting reforms as part of the debt-ceiling compromise signaled a policy change are going to be disappointed. His Administration’s hostility to natural-resource development continues apace.
On Tuesday the U.S. Army Corps of Engineers revoked a Clean Water Act permit granted by the Trump Administration for the NewRange copper and nickel mine in Minnesota’s Duluth Complex. The area isn’t virgin land. The Duluth site is part of the fabled Iron Range, which provided 70% of the iron ore that America used during World War II.
“Minnesota’s Iron Range has played a vital role in helping build America,” candidate Biden proclaimed in September 2020. “U.S. manufacturing and mining was the Arsenal of Democracy in World War II. It must be part of the Arsenal of American Prosperity today, helping power an economic recovery for working families.” Apparently not.
His Administration picked the anniversary of D-Day to deep-six the NewRange mine, which would provide minerals to power electric vehicles and his green-energy transition. The U.S. will have to import the minerals from arsenals of autocracy like Russia and China.
I for one welcome it as a forthright admission that they wish to replace discussion, reason, and scientific inquiry with religious dogma. Better a visible adversary than one shrouded behind words and phrases meant to conceal and deflect rather than to enlighten.
A few months ago, Ashley Rindsberg revealed “[h]ow Anthony Fauci manufactured consensus on the origins of COVID-19 with the help of science writers and the media.” A slice: (HT Jay Bhattacharya) A slice:
The deeper phenomenon at work, however, is that in the U.S. a large number of professionals who cover science for general readers and for news publications like The New York Times or The Wall Street Journalare not—and do not pretend to be—journalists per se. They are science writers whose field is science communications—a distinction with a huge difference. They see their role as translating the lofty work of pure science for a general audience, rather than as professional skeptics whose job is to investigate the competing interests, claims, and billion-dollar funding streams in the messy world of all-too-human scientists.
From the beginning of the pandemic, The New York Times, The Washington Post, CNN and other leading mainstream outlets were taking their cues—including their facts and their seemingly unflappable certainties—from peer-reviewed publications with authoritative professional reputations like Nature, Science, and The Lancet.
It was this small handful of peer-reviewed science and medical journals—and to a shocking extent just these three—on which the consumer media based key narratives, like the idea that SARS-CoV-2 could not possibly have come from a lab. Boiled down, “the science” on a given issue was often conclusively reduced to whatever these journals published.
But for the establishment science publishing community, the pandemic also had an unintended consequence. Through journalistic investigations, often powered by FOIA requests that ensnared hundreds of email exchanges with scientists and science writers, a spotlight was turned on science journalism itself. Writers like Paul Thacker, a contributor to The BMJ, Emily Kopp, a reporter for the watchdog group U.S. Right to Know, Michael Balter, who has contributed dozens of pieces to Science magazine, and the powerful decentralized group of COVID investigators called DRASTIC, exposed the inner workings of an industry that claims to speak for science but often works for political and corporate interests.