The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the court with the utmost reverence and solicitude.
This is important and vital, and one doesn’t want to slag the court for the boundless attention and care it lavishes upon the most obnoxious speakers in America. After all, the First Amendment is kind of the constitutional gateway drug, the portal to the rest of the Bill of Rights. And without securing meaningful protection for the rights to speak, assemble, worship, and publish, so many of our other rights might be illusory. Great. Stipulated.
That makes it extra weird whenever the assorted (let’s call them largely “conservative”) justices of the Roberts court, and judges on lower courts across the land, turn their attention to the protection of other rights—equally crucial but perhaps less sexy—like, say, the right to vote or to obtain an abortion. That’s when the nameless, faceless rights seekers all blur into oblivion, a great unwashed mass of undifferentiated shadow people. And that is when some judges find it all too simple to bat these rights away with a stroke of the pen.
In the past few weeks, it’s been astonishing to contrast the regard afforded to individual speech rights with the cavalier dismissal of other, equally precious hallmarks of democracy.
There was no better reminder of this phenomenon than watching the justices simply write off the voting rights of what may well amount to 600,000 Texas voters, many black and Latino, last weekend, in the wee hours of the morning, without stated reasons or written opinion. As Richard Hasen has explained, after a nine-day trial, a district court determined that there were “hundreds of thousands of voters potentially unable to get IDs because they were hours away from the government offices issuing IDs.” The 5th Circuit Court of Appeals was not much bothered by the fact that hundreds of thousands of Texans would be forced to travel for hours to obtain proper ID for the midterms, and the Supreme Court agreed. Meh, what’s a few hundred thousand disenfranchised voters when you have “electoral integrity” to protect?
This is of course the same 5th Circuit Court of Appeals that, only weeks earlier, was not much bothered by the prospect that 900,000 women in Texas will soon live more than 150 miles away from the nearest clinic offering a safe and legal abortion, or that 750,000 would live more than 250 miles away, if Texas’ draconian new abortion restrictions are allowed to stand and a majority of reproductive health clinics must shut down. For now, at least, the Supreme Court has blocked the law, in another unsigned order. But the staggering lack of concern for not just hundreds, not just thousands, but tens or hundreds of thousands of women was all over the 5th Circuit’s opinion.
The 5th Circuit evinced a kind of Marie Antoinette approach to individual justice in these cases. When it shut down access to both voting and abortion in Texas, it indicated without precisely saying so that as long as citizens have fast cars and flexible work schedules, they are not burdened by Texas’ regulations. And seemingly there are no Texans without fast cars and vacation time in their view. At oral argument in the case about the shutdown of 20 Texas clinics, Judge Edith Brown of the 5th Circuit heard that abortion clinic closures would leave the Rio Grande area without any providers, forcing women who live there to drive 300 miles round trip to Corpus Christi. The judge sniffed, “Do you know how long that takes in Texas at 75 miles an hour? … This is a peculiarly flat and not congested highway.”
Looking at the 5th Circuit’s screwy fractions earlier this month, Amy Davidson noted that it’s astonishing on its face that the judges who agreed to shut down Texas reproductive health clinics would deny one-sixth of Texas women reasonable access to a clinic. More astonishing still is the fact that the judges were perfectly aware that this burden would fall most heavily on women without cars, who couldn’t afford to take several days off work to travel to distant clinics. And that was OK. These facts of life affected their conclusions not at all.
The idea that judges would simply vaporize the interests of hundreds of thousands of poor and minority voters is perhaps just as amazing. By what logic do thousands of abortion-seekers and would-be voters simply stop counting?
A panel of judges on the 7th Circuit Court of Appeals was similarly unfazed by the possibility that 300,000, or 9 percent, of Wisconsin voters would be disenfranchised by that state’s new voter ID law. Whether it’s 500,000 voters or 300,000 voters or almost a million women, these numbers are just not capable of moving the judicial heartstrings.
Perhaps these hundreds of thousands of people—a seeming multitude to you and me—are dismissible because they are poor or minorities or just women, or in any event people who don’t drive really fast cars. As Judge Richard Posner painstakingly explained in his dissent in the Wisconsin voter ID case, the cost of obtaining the appropriate documentation to vote under the new Wisconsin law is somewhere in the range of $75 to $175. Adjusted for inflation, he noted, that is higher than “the $1.50 poll tax outlawed by the 24th amendment in 1964.”
There’s an equally obvious and far more troubling problem with the math on the other side of the ledger, as Michael Hiltzik points out, where people are worried about infinitesimal percentages of potential fraud. Wisconsin Gov. Scott Walker defended his state’s voter ID law by claiming it is worthwhile whether it stops “one, 100, or 1,000” illegal votes. Kansas Secretary of State Kris Kobach, another big fan of voter ID, similarly argued recently that a glitch that would result in the disenfranchising of 12,000 people wouldn’t be a “major problem” because they represent a “tiny percentage” of Kansas’ voters. Walker and Kobach pooh-pooh the disenfranchisement of tens or hundreds of thousands of state voters in order to fight the scourge of vote fraud, of which there were seven incidents in Kansas in the past 13 years, and two documented in Texas. It’s not just bad that real votes and real abortions are blocked to deter an imaginary problem (vote fraud and botched abortions). It’s that even if the problems were genuine, the math still wouldn’t work.
It’s utterly baffling, this new math. Math that holds that seven incidents of vote fraud should push hundreds and thousands of voters off the rolls. Or that hundreds of thousands of women can be denied access to safe abortion clinics, supposedly to prevent vanishingly small rates of complications. I don’t know how we have arrived at the point where members of the judicial branch—the branch trusted to vindicate the rights of the poorest and most powerless—don’t even see the poor and powerless, much less count them as fully realized humans.
This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?