Lately, a lot of people - even Republicans - are beginning to realise that the GOP is not working. Economist Josh Barro is one of them, but a recent column was misunderstood. He says, "I don't want a Republican Party that's just like the Democratic Party, even though some people on both the right and the left see that as the upshot of Republican critiques like mine." Here's the problem, though. The Republican Party he wants is utterly impossible:
Political parties should differ on normative questions. They ought to strive for agreement on positive questions - questions such as, what policies cause gross domestic product and median incomes to rise, how unemployment insurance affects the unemployment rate, or how global temperatures are changing. Currently, Republicans make a lot more errors on these kinds of questions than Democrats.
In computer parlance, Barro is mistaking a feature for a bug. Take away the "errors", and the GOP has nothing left to offer. The difference is not just in error rates, but in norms: The normative difference that distinguishes the GOP is its hostility to facts, and its dedication to a hierarchical worldview profoundly at odds with America's most admirable egalitarian aspirations. On everything from global warming to evolution to Obama's birth certificate, the party treats facts with a mix of white hot fury and sneering derision. Chuck Hagel's fillibuster by his former GOP Senate colleagues is another case in point. Breaking ranks with Bush on the Iraq War was bad for Hagel. Being right was fatal.
Which brings us to the Republican war on voting, Supreme Court edition, as seen in the oral arguments on Shelby County v Holder, a case that conservatives may well use to overturn the heart of the Voting Rights Act, the most important protection of voting rights Americans now have. In this attack, we see the intimate connection between conservatives' hostility to facts and to robust democracy as well.
Bodies of fact
There are three main bodies of fact that conservatives on the Supreme Court vehemently ignore in their anti-Voting Rights Act crusade. First is the body of facts surrounding the passage of the Fifteenth Amendment, which provides the specific legislative authority for the Voting Rights Act. Second is the body of facts considered by Congress in passing and repeatedly re-authorising the Voting Rights Act, most recently in 2006. Third is the body of facts about current and ongoing assaults on voting rights today. Any one of these three bodies of fact would be enough to derail the conservative crusade, which is why they ignore all three. Let's consider them all, in reverse order, from present to past.
First, in case you missed it, voting rights are still widely under assault in America today. Just to take one most obvious example, in 2011 alone, dozens of states considered, and fourteen states passed laws that threatened to prevent up to five million Americans from voting, based on a baseless fear of virtually non-existent voter fraud. Pushing the voter fraud fraud for the past 12 years is ground level one of Republicans' contempt for facts in this area. Last year, a variety of responses (including federal Voting Rights Act lawsuits) blunted these attacks, while anger over them actually motivated higher levels of voting in some areas, even as a Florida study found that over 200,000 Florida voters gave up trying to vote due to the long lines created there (voting rights are also under assault in a wide range of other ways as well - such as redrawing district lines, or eliminating districts altogether. In Shelby County Alabama, the current case had its orgins in just such a scheme).
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These "anti-voter-fraud" measures - such as requiring photo IDs to vote, restricting the voter registration process, cutting back on early voting, etc - may give the superficial appearance of being "good government" measures without any sort of racial impact, much less racist intent. But appearances can be quite deceiving, especially in racial matters, as American history has repeatedly proven. A thorough understanding of that history, and its continuing impact on our lives today is the reason why we have a Voting Rights Act in the first place, and why it has been repeatedly re-authorised, after extensive processes of legislative fact-finding and review.
This brings us to the second body of facts that conservatives on the court ignore - the record of voting rights violations that Congress considered in creating and repeatedly reauthorising the VRA, most recently in 2006. When the VRA was first being considered, voting rights activists faced a harsh reality: no matter how valiantly they struggled against one barrier or another to black voting rights, as soon as they managed to tear one barrier down, it was quickly replaced by another - almost always well in advance of the next election. That's why one section of the act - Section Five - was designed to require certain "covered jurisdictions" to get permission in advance before they could change their voting laws in any way. Jurisdictions that could demonstrate 10 years of good behaviour could then "opt-out" of the process - as hundreds of jurisdictions have now done. But as long as the pattern of vote-blocking persisted, covered jurisdictions would remain covered, so that voters would always have federal protection against the mischief of state and local politicians.
It's similar to how many other legal practices work - such as probation and parole for convicted criminals, whom society hopes to rehabilitate over time - or custody arrangements between parents, which are subject to subsequent judicial review. It's fact-based oversight, in which the oversight conditions themselves can change as a result of what the facts disclose. If this strikes you as a fair and reasonable approach, you're not alone - a vast majority of the US Congress agrees. When the Voting Rights Act came up for re-authorisation in 2006, for the fourth time, Congress had a thorough legislative review, with 21 hearings, over 90 witnesses, and a 15,000-page record compiled over a ten-month period - and then approved it 98-0 in the Senate and 390-33 in the House. In this process, Congress documented that more than 750 Section Five objections blocked approximately 2,400 discriminatory voting changes since the last previous reauthorisation of the Voting Rights Act in 1982. It also observed that 650 successful voting rights lawsuits were brought in jurisdictions covered by Section Five. That's an awfully large body of facts about an awfully large body of attempted discriminatory acts - all studiously ignored.
Finally, there's the body of facts surrounding the Fifteenth Amendment, which specifically authorises Congress to protect the right to vote. Specifically, it says that "The right of citizens of the United States to vote shall not be denied or abridged... on account of race, colour, or previous condition of servitude", and that "Congress shall have power to enforce this article by appropriate legislation". Just in case this language isn't clear enough, the Constitutional Accountability Center submitted an amicus brief explaining in detail that it means just what it says. On its website, the CAC explains:
The brief walks through the debates over the three Reconstruction Amendments and demonstrates that each conferred broad legislative authority on Congress to prevent state-sponsored discrimination. The brief also notes that the Court has consistently held that the Fifteenth Amendment permits Congress to single out jurisdictions with proven histories of racial discrimination for prophylactic regulation such as this one.
In the brief itself, the CAC wrote:
In writing the Enforcement Clauses, the framers of the Reconstruction Amendments did not simply add to the list of express congressional powers enumerated in Article I and elsewhere in the Constitution. Instead, they explicitly invested Congress with a central role in enforcing the constitutional rights protected by our fundamental charter, including the right to vote, a right this Court has long described as "preservative of all rights."
The facts could not be clearer: the Voting Rights Act is explicitly called for in the Constitution.
Trolling the VRA
Above I said that Court conservatives had to ignore three bodies of fact, but actually there's a fourth one they ignored - the body of facts surrounding Shelby County, which brought the suit. This body of facts did not escape Justice Sotomayor, however. "Assuming I accept your premise, and there's some question about that, that some portions of the South have changed, your county pretty much hasn't," she said to the attorney representing Shelby County. "In the period we're talking about, it has many more discriminating - 240 discriminatory voting laws that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this."
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The weakness of the conservative attack on voting rights is underscored by the fact that no leading conservative legal scholars have signed on to support it. It's been supported by think tanks, and by wealthy anonymous donors, but no leading figure in legal academia will lend their name to this fight. The facts are just overwhelmingly against it.
Which may help explain why Antonin Scalia resorted to what Rachel Maddow correctly identified as "trolling" - using extreme, unsupported claims to shock and offend, distracting everyone from the utter lack of substance on his side. The phrase Scalia used for this effect was "racial entitlements", and here's the context. Scalia first rattled off the declining levels of opposition to the VRA in the Senate each time it was reauthorised - which virtually everyone would read as evidence of strengthening support for what it does. But not Scalia:
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
Obviously, Scalia referring to protecting the right to vote as a "racial entitlement" was the flashpoint for a lot of anger. There are people still alive today whose relatives were killed in the voting rights struggle that lead to the passage of the VRA, so that anger could be counted on in advance - which is precisely what trolls live for.
But there's more to what trolls are about than that. There's also the intentional disruption of a serious rational, fact-based argument which the troll knows very well they cannot possibly win. Outrageous statements are a key ingredient in trolling - preferrably ones with little or no cognitive content, making them difficult, even impossible to refute, no matter how outrageous they are - but so too is the spreading of chaff, somewhat less inflammatory, but equally mendacious claims tossed around willy-nilly to spread confusion and disarray.
This, too, fits Scalia and his behaviour here. He dismisses the actual content of the congressional deliberation and evidence considered, misrepresents the House, which voted 390-33 to pass the VRA, strong support, but not unanimous, and then uses his fantasy of unanimous support to speculate on another cause - "perpetuation of racial entitlements" - which is little more than his own invention. He then falsely bolsters this claim by saying "it's been written about" (I called the Heritage Foundation, they couldn't find any examples) and that his invention proves his point. With so many false and misleading balls in the air at once, Scalia's delighted to take the heat for the most incendiary part of what he's said. No one is going to take the time to refute the whole thing.
And that's the whole point, really. First you sideline entire bodies of evidence, then you launch your own narratives about what's going on. Outrageous lies draw high-profile fire, but meanwhile you advance a whole train of lesser lies. The next time around, you build on those lesser lies, while trotting out a new outrage to draw fire in different direction. Bit by bit, you build up an entire ediface of lies, based merely on repetition, not truth.
Scalia's already established this pattern with respect to the VRA. In a previous case in 2009, he poo-poo'd the Senate's unanimous vote, saying, "The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." There was a whole different set of misleading and mendacious balls in the air that time, which political scientist Scott Lemiuex cut to pieces in a recent post, "Scalia: Not Just Offensive, Ludicrously Overrated". The bottom line is painfully simple, though: no one seriously believes that unanimous verdicts are less trustworthy than non-unanimous ones, and standard criminal jury practice resoundingly reflects that fact.
But the troll doesn't care, because being right is never anywhere on his list of priorities. He has a different set of norms, you see. He isn't interested in "agreement on positive questions" - that's just a foolish secular liberal goal. His goal in argument is winning, not seeking truth. He's interested in shutting people out and shutting them up, in dominating the political discourse with hollow displays full of sound and fury, signifying his own self-importance. He does not wish to win rational arguments, but to end them, once and for all.
Within days of the VRA oral arguments, attention shifted to Selma, Alabama, where thousands joined Congressman John Lewis for the annual commemoration of Bloody Sunday, March 7, 1965, when state and local police beat Lewis and other marchers with billy clubs as he co-led the first attempted Selma-to-Montgomey march for voting rights across the Edmund Pettus Bridge. Eight days later, President Lyndon Johnson introduced Voting Rights Act to Congress, in a speech where he said of the black struggle for civil rights, "Their cause must be our cause, too, because it is not just Negroes but really it is all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome." Six months later, Johnson signed the Voting Rights Act into law.
If you look closely, at just the right angle, you can see Antonin Scalia there in Selma, too. He's the troll lurking in the shadows beneath the infamous Edmund Pettus Bridge.
Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, where he's worked since 2002. He's also written for Publishers Weekly, Christian Science Monitor, LA Times, LA Weeklyand Denver Post. In 2000/2001, he was a principal editor/writer at Indymedia LA. He was a front-page blogger at Open Left from 2007 to 2011.
Follow him on Twitter: @PaulHRosenberg
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.