The Supreme Court's War on the Great Society

AP Images/Yoichi Okamoto

The Voting Rights Act of 1965 (VRA) is arguably the most important and successful civil rights legislation passed by the United States Congress. Today, without remotely adequate justification, a bare majority of the Supreme Court cut the heart out of the centerpiece of the Great Society. That this outcome was expected doesn't make it any less outrageous.

The key issue in Shelby County v. Holder is the "preclearance" provisions of the Voting Rights Act. Section 4 of the VRA "covers" numerous jurisdictions—predominantly but not exclusively Southern—with a history of vote discrimination and Section 5 of the VRA requires the covered jurisdictions to get approval from the federal government before changing their voting laws. We should start with the explicit constitutional authority for this legislation. The majority opinion asserts that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections." The problem, of course, is that the balance the framers and ratifiers of the Constitution of 1787 and 1789 established between the federal government and the states in supervising voting has been rendered obsolete by the Civil War Amendments. Section 2 of the 15th Amendment states that "[t]he Congress shall have power to enforce [the 15th Amendment's prohibition of racial discrimination in voting] by appropriate legislation." There is no question about Congress's authority to prohibit racial discrimination in voting. Legislation directed to this end does not interfere with any state "sovereignty" protected by the Constitution, and Congress should be given broad discretion to act.

Nevertheless, Chief Justice Roberts (speaking for the Court's four other Republican appointees) held a crucial provision of the VRA unconstitutional. The majority did not strike down Section 5, but it did strike down Section 4—in other words, maintaining the "preclearance" provision but as of now not applying it to any states. According to Roberts, times have changed, and therefore Congress's authority has changed as well. (Remarkably, Section II A of Roberts's opinion, laying out a theory of state sovereignty on voting that justifies his palpable disrespect for Congress, does not mention the 15th Amendment at all.) "Congress," the majority says, "did not use the record it compiled to shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day." If Congress does not continually update Section 4, it cannot apply the preclearance provision, because patterns of discrimination have changed.

The problems with this argument are manifest. As Ruth Bader Ginsburg argues in the latest of her brilliant dissents, the Court perversely uses the success of the Voting Rights Act as an argument against it. As she observes, "throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet." The extensive history of states creatively nullifying the 15th Amendment provided a strong justification for preclearance, and the effectiveness of the provision shows that Congress was justified. To the majority, this very effectiveness makes the legislation "inappropriate." To restate this argument is to refute it. Section 4 may not represent the states that Chief Justice Roberts believes should be covered by it and it would not represent my list either, but this isn't the issue. To be constitutional, legislation enforcing the 15th Amendment needn't be "ideal," it need only be "appropriate." Section 4 continues to pass this test easily, and there is no legitimate warrant for the Supreme Court to usurp the authority of Congress in this case.

In contrast to Justice Thomas's openly radical concurrence—he argues that Section 5 is unconstitutional—the Chief Justice's opinion is cloaked in apparent modesty. "Congress," the majority generously concedes, "may draft another formula based on current conditions." But, as Justice Scalia has previously written about Roberts's superficially "minimalist" opinions, "this faux judicial restraint is judicial obfuscation." Forcing Congress to start from scratch makes it enormously difficult for Congress to pass a modified Section 4; the basic institutional realities of the American institutional framework make inertia the most powerful force. Once a legislative coalition has been torn apart, it cannot be easily reassembled. The Supreme Court isn't acting as a mere neutral arbiter here; it's putting an anvil on the scale tilting toward Republican opponents of voting rights.

And, secondly, beware the bait-and-switch. Even in the unlikely event that Congress can pass a new version of Section 4, it will be enormously difficult to meet the arbitrary standards that a Supreme Court consistently hostile to federal intervention to protect basic rights has laid out. If a new Section 4 covers too few jurisdictions, it can be held to illegally discriminate against some states (as the Court did today.) If Congress creates a national preclearance requirement, however, it is virtually certain that the Republican-appointed majority of the Court would hold that this remedy was not "congruent and proportional," as it held when Congress tried to protect victims of gender-based violence under its authority to enforce the 14th Amendment. It is nearly impossible to satisfy the demands of a Court that takes equality between the states much more seriously than the equal rights of American citizens.

Roberts's seemingly modest opinion, therefore, is anything but. The odds that a new Section 4 can pass both houses of Congress and be the Goldilocks statute that will cover neither too many nor too few states to satisfy the Roberts Court's inscrutable but consistently anti-Congress whims are roughly equivalent to the odds that Nancy Pelosi will be the Republican candidate for president in 2016. The effect of the majority's opinion will likely be to quietly accomplish what Thomas's inconveniently candid holding that Section 5 is unconstitutional would prefer to do directly.

It is simply not the role of the Court to arbitrarily micromanage an area of clear congressional authority this way. Justice Ginsburg powerfully points out the appropriate stance that should be taken toward Congress in this case:

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.

There is a long and ignoble American tradition of using vague invocations of "states' rights" to trump real, fundamental human rights. The Roberts Court's inept intervention into an area of clear congressional authority on the grounds that a valid statute passed by Congress has been too successful at preventing discrimination is very much in that tradition. Congress should do what it can to respond to this seizure of its proper authority, although it will probably take a change not only in the partisan control of the House of Representative but a change in personnel of the Court to successfully restore the Voting Rights Act.

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