The Supreme Court Breakfast Table
Dear Dahlia and Linda:
I'm not sure I agree with Dahlia that there is no drama in today's 8-1 decision to avoid deciding the constitutionality of the Voting Rights Act's Section 5 preclearance requirement, which mandates that jurisdictions with a past practice of racial discrimination get approval from the Department of Justice before changing their voting rule. The court stepped back from blowing up one of the key provisions of the most important civil rights law ever passed when it was widely expected that the detonator button would be pushed. That is no small thing. When he was director of the NAACP Legal Defense Fund, Thurgood Marshall said that Rule No. 1 was "never lose." Winning big was great, but the most important thing was to avoid a loss that would preclude fighting another day. The current LDF director, John Payton, and its courtroom advocate, Debo Adegbile, have reason to be pleased today.
That said, I do agree with Linda that it may be only a matter of time before the court invalidates this part of the Voting Rights Act, unless Congress is willing to make significant changes to it.
Questions abound. Have we, finally, for once, seen an instance of the minimalist judging that John Roberts espoused in his confirmation hearing? Or does the opinion suggest that Section 5 of the Voting Rights Act in its present form is doomed when that inevitable next case goes to the Supreme Court? How soon will a jurisdiction that has tried and failed to get out from under Section 5 bring a new challenge? What can Congress do to save it?
To go back to my first question, to start with, why didn't the court's majority proceed to invalidate Section 5 now? I agree with Linda that the chief justice may be genuinely reluctant to take such a dramatic and symbolic step when it can be avoided. One additional factor that might be at work is the pendency of the white New Haven firefighters' suit, Ricci v. DiStefano. If the court is going to use that case to make a significant change in the civil rights jurisprudence known as disparate impact analysis—and we will know that soon—some justices might have been hesitant to strike down significant and long-standing remedies under both Title VII and the Voting Rights Act back-to-back. Substantially revising two pillars of the civil rights structure in a single week might have been too much at once.
It does appear that the Voting Rights Act as written is doomed. The chief justice's opinion is full of reasons for holding it unconstitutional and barely mentions two points in its favor, each of which is attributed to the trial judge and not endorsed by the majority opinion. Roberts notes that in 1965, in Katzenbach v. South Carolina,extraordinary circumstances justified what would have otherwise been an unconstitutional remedy of requiring states to get advance permission before changing their voting laws. He goes on to say that Section 5 requires of states subject to it actions that would be unconstitutional if imposed on other states. And then he concludes that there is considerable evidence that the geographical formula for which states Section 5 covers is not justified by current circumstances. You can do the math in your head.
So why not go ahead and strike it down now? In a thoughtful posting, Tom Goldstein of SCOTUSblog suggests that this really is an instance of the "minimalist" chief justice emerging. Not only does the Roberts opinion achieve an almost unanimous consensus on a very divisive issue, but he enters into a dialogue with Congress, inviting the legislature to consider the court's concerns and respond with a revised statute that is more fully consistent with constitutional structure.
I am not sure, however, how minimalist or respectful of Congress this result really is. There are several revisions Congress could adopt that would make Section 5 more acceptable to the court's majority. But only one of those changes is really material: redoing the formula for which states the act covers. Today's decision seems to say to Congress, "We won't even consider upholding the preclearance requirement unless you use a fresh, rather than a historic, determination of what states and subjurisdictions still have a problem with racist voting and discriminatory voting laws." Congress, however, had very good reasons for its decision to keep the historic coverage formula in place, reasons of judgment and practicality and legislative process. In the end, the question of whether it is "appropriate" to use the older formula rather than a new one seems to me to be a matter the 15th Amendment entrusts to the good judgment of Congress, not the court.
And yet the fact that Congress did not revisit the formula for deciding which jurisdictions were covered seemed particularly troubling at oral argument to both the chief justice and Justice Kennedy. Congress did amass findings that racial discrimination in voting was still a problem and that the jurisdictions covered by Section 5, taken as a whole, had greater problems with race discrimination than the rest of the country taken as a whole. But Congress did not undertake to determine, as of 2003, whether, for example, Virginia, which Section 5 covers, still had more racial voting problems than, say, Oklahoma, which Section 5 does not. This seemed to Justice Kennedy and Chief Justice Roberts to offend those states' "equal dignity." Justice Kennedy said at oral argument that the current formula meant that "the sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments [in] the other." Congress, he suggested, should have had a much fuller record of current information to justify imposing a stigma on those governments that are to be "trusted less" than others.
But Congress had very sound, practical, and pragmatic reasons for leaving the states covered by Section 5 as they were: a fear that reopening the formula could turn into a legislative nightmare. The jurisdictions covered by Section 5 are basically comfortable with being covered on the basis of history. The historical fact that these states formally engaged in pernicious voting practices—which no one disputes—imposes no great stigma on their current body politic. To decide, as the court seems to demand of Congress, which states are currently "more racist than the other states" through a new coverage process could well produce a legislative process of chaos and recrimination. Imagine: Virginia gets out of the requirements of Section 5 by showing it is now no worse than Oklahoma, followed by Georgia saying, "Why do you think we're worse than Virginia?" Congress had a hugely important reason for wanting to avoid making that present judgment of comparative blameworthiness.
As Linda notes, it is very questionable that the court, rather than Congress, should make the judgment about what is appropriate legislation under the Civil War amendments that are the basis for the Voting Rights Act. The 15th Amendment, after stating that the right to vote shall not be abridged on account of race, provides: "The Congress shall have the power to enforce this article by appropriate legislation." Congress is thus the only institution mentioned in a fundamental constitutional provision that entrusts protection of voting rights to the federal government.
The court seems to be telling Congress that it might uphold the law if Congress were to undertake revisions that would bring the law more in line with the court's own sense of an appropriate legislative process. For the court to second-guess Congress on such a matter seems far from minimal—and a matter of drama in itself.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.