The Supreme Court’s decision upholding two Arizona voting provisions has brought a sharp rebuke from the White House. Joe Biden issued a statement that begins, “I am deeply disappointed in today’s decision by the United States Supreme Court that undercuts the Voting Rights Act, and upholds what Justice Kagan called ‘a significant race-based disparity in voting opportunities.’”
The Department of Justice issued a separate statement on the decision. It promises that “the Department of Justice will never stop working to protect the democracy to which all Americans are entitled,” and urges Congress to “enact additional legislation to provide more effective protection for every American’s right to vote.”
I would call Biden and his DOJ sore losers, except that the administration didn’t lose this case. In a letter to the Supreme Court, the Biden Justice Department told the Justices it did not disagree with its prior conclusion, set forth in a brief by the Trump DOJ, that the two provisions of Arizona law at issue do not violate Section 2 of the Voting Rights Act.
Strictly speaking, there is no inconsistency between the DOJ’s agreement that the Arizona provisions are lawful and Biden’s disappointment with the Court’s decision. The majority opinion didn’t just uphold Arizona law, it also discussed the circumstances under which Section 2 challenges to “time, place, manner” restrictions on voting will be upheld. Clearly, Team Biden is not on board with that discussion.
But Biden didn’t just express disappointment with the majority’s reasoning. He agreed with Justice Kagan’s complaint in dissent that the Court’s decision upheld “a significant race-based disparity in voting opportunities.”
If that’s what Team Biden believes, why did it tell the Court when the case was pending that the two provisions under challenge don’t violate the law? And if it was concerned about the standards under which the case would be decided, why didn’t it file a brief saying what the proper standard should be? The DOJ told the Court it disagreed with the analysis of the Trump DOJ’s brief, though not its bottom line, but did not present its own analysis.
It’s odd enough that the supposedly apolitical Biden-Garland-Clarke Justice Department is taking pot shots at the Supreme Court in public statements about a voting rights case. Odder still is the fact that it’s making arguments it declined to make when it had the chance to make them to the Court.
And it’s beyond odd that Biden now is publicly disagreeing with a result his administration told the Court it didn’t disagree with.
What’s going on? I can only guess.
One guess centers around the fact that Kristen Clarke had not been installed as head of the DOJ’s Civil Rights Division when the Biden DOJ sent its letter to the Supreme Court approving of the Arizona provisions. Maybe Clarke along with Vanita Gupta, the Associate Attorney General, persuaded the administration to balk at the outcome of the case, notwithstanding the Biden DOJ’s prior position.
It’s also possible that the Solicitor General’s shop didn’t see the case the way the Clarke Civil Rights Division sees it (or pretends to). Or maybe that shop didn’t want to do an embarrassing complete about-face on the issues presented to the Supreme Court from the position it took during the Trump administration.
Whatever else may be true, I’m pretty sure that the statements by Biden and the DOJ are intended to fire up the base, both on the issue of voting rights and the Supreme Court generally. Biden intends to pack the Supreme Court if, after the 2022 election, he has the votes to do it. His statement about the Arizona case can be viewed as building a record.
Finally, let’s note once again the absurdity of claims that Merrick Garland is a moderate. No moderate would have filed the Georgia voting rights case, issued yesterday’s press release, or authorized the West Virginia transgender athlete filing.
Garland is a perfect tool of the left. He presents a mild, cerebral public image, while rubberstamping whatever leftist proposals that he receives from the likes of Gupta and Clarke.
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