Just Another Day, Just Another Example of Judicial Imperialism

[Cross-posted to Political Context]

This morning the word came down from the Supreme Court: in the matter of Shelby County v. Holder, the landmark (and often-renewed) 1965 law, the Voting Rights Act, survives....but the law's crucial Section 4, which was the formula by used by Congress determined the range and extent of "preclearance" coverage which they'd long judged to be necessary in order to guarantee federal-level protections of minority voting rights against state and local discrimination in certain parts of the country (currently these), is unconstitutional. It no longer matches, in the judgment of five of the nine members of the Supreme Court, the racial realities on the ground (even though in 2006, after an enormous amount of research and testimony and backroom dealmaking, Congress decided that it still did), so it's gone. And that means that Section 5 of the VRA, which is where the whole process of preclearance is spelled out, is essentially defunct. The ability of the federal government to provide some real support to racial minorities who believe they have a legitimate complaint against unfair voting rules is now mostly gone, because five judges wanted to absolve certain states and localities from constitutional obligations in ways which our national legislature had determined they still needed to do.

Absolving states from constitutional obligations? Is that a too-extreme description? Perhaps, a tiny bit--after all, there are other mechanisms in the VRA to enable the federal government to respond to claims of voter discrimination (the means for pressing federal lawsuits on behalf of voters is spelled out in Section 2 of the law), and it is true that most of what the Section 5 has been used to address in recent years as been matter of unfair representation outcomes, rather than actual, direct, voter discrimination (and that, admittedly, has its own problems as well). But on the other hand, the whole reason that Congress came up the preclearance process and a formula for determining what was covered by it in the first place was that making these determinations lawsuit by lawsuit, across thousands of jurisdictions, is incredibly messy, costly, and time-consuming (meaning that it will be usually the marginalized voters who will suffer). Civil rights organizations insist that, with Section 5--and the Section 4 which makes it operable--gone, they will have lost one of their strongest tools for maintain a certain level of equal civic access and representation in this nation. And that is a constitutional concern.

The usual defenses will, of course, be trotted out: times have changed, the South has changed, so shouldn't the Voting Rights Act change as well? That's an excellent question--which is why Congress has to regularly renew the Act. Which it did, after many weeks of testimony and investigation and debate, resulting in some fine-tuning, only seven years ago. (Jacob Levy sees an excellent opportunity for snark here: Justice Scalia, a self-proclaimed textualist who insists that the language of the law doesn't change to fit social realities, signed on to the majority opinion shooting down Section 4 of the law, which concludes its undemocratic decree by simply stating "our country has changed"; this makes Jacob want to ask, "Justice Scalia, when did the evolving standards of the living constitutional text of Amendment 15 section 2, change to make the VRA Section 4 unconstitutional? Can you give me a date on that?") I realize that this is a constant obsession of mine, but that's only because the cause of the obsession has no intention of going away: we have a Supreme Court (and particularly, these days, a pseudo-composite conservative/libertarian/originalist five-judge majority upon it) who are possessed of a certain kind of constitutional fetish, one that leads them to insist far too often that the deliberations of our legislatures, however subject to critique they may be (and believe me, I have many critiques I can make of our Congress!), ought to be not merely reviewed for the sake of addressing specific concerns about ensuring certain constitutional guarantees, but substantively investigated, measured against whatever sociological or ideological or historical predilections happen to possess the nine (or, more usually, some combination of five or more) people currently sitting upon it, and if found wanting, carefully parceled out and then flushed down the toilet. The idea that the U.S. Constitution needs to be kept, as much as possible, unsullied by the messy process of democratic decisionmaking and dealmaking on the federal level strikes me as entirely incompatible with the realities of self-government in a nation like our own--and hence the fact that the animating concern behind Shelby County v. Holder was clearly an overwrought and somewhat twisted devotion to minimal government and state sovereignty is that much more frustrating.

Final words to Justice Ginsberg's strong, calm dissent from this latest bit of depressing news:

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.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. 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.

True enough. But hey, the term isn't over yet! Let's see what the Supremes will have for us tomorrow.