To expand on my concluding comments a bit, I agree with Adam that Section 5 is by no means out of the constitutional woods yet. I also agree that the Court's decision should be read as a warning shot to Congress. The question -- and given the nature of minimalist opinions, it's almost impossible to answer -- is what exactly the shot consists of. It seems to me that there are two major scenarios:
- The optimistic scenario is that the Court is instructing Congress that to be upheld, Section 5 will have to apply to all states rather than a select number based on their pre-1965 records of vote suppression. (In this scenario, either Congress changes the legislation, or at worst the Court strikes down section 5 with language making it clear that a preclearance requirement that applies to all states would be upheld.) As I said, I think this would actually represent a salutary exercise of judicial review, making the statute better on the merits and actually broadening the ability of the federal government to protect voting rights.
- The darker scenario is that the majority is setting a tarp similar to the disgraceful Catch-22 it set leading up to Bush v, Gore (in which the Florida court was told not to create a uniform vote counting standard and was then reversed because it failed to set a sufficiently uniform vote counting standard.) In this scenario, if Congress keeps the statute as is, Section 5 will be stuck down because as Roberts argued (quite convincingly) the targeted states are no longer necessarily the ones most likely to impermissibly restrict the franchise. But if Congress applies it across the board, it will be struck down because Congress's enforcement remedy isn't "congruent and proportional" to the scope of the constitutional violations and should be more narrowly targeted. In this case, minimalism becomes a shell game in which the Court holds out hope that Congress could pass a constitutional preclearance standard but can never find one that actually passes constitutional muster.
As for which of these is more likely, well, I'm certainly inclined to share Adam's pessimism. But I would reiterate my caveat: I suspect that Roberts be very reluctant to explicitly strike down a provision of major civil rights legislation. Such an opinion would attract negative attention to the Court in the way that narrowly construing a statutory provision wouldn't, and as Thomas reminded us today if the Court really wanted to strike the legislation there's no reason that it couldn't have done so today. It may be wise for Congress to try to address the Court's implications today to the extent that they can to improve the odds, however.
--Scott Lemieux
