The Supreme Court Breakfast Table
Linda and Walter:
If you want to your brain to implode, try reading today's decision in NAMUDNO next to a transcript of the oral argument from last April. Linda, you made this observation implicitly in your last post, but let me just say it outright: What happened to the Chief Justice John Roberts who gnashed his way through that oral argument with nothing but contempt for Section 5 and those who defended it?
Here was Roberts in April, questioning Deputy Solicitor General Neal Katyal's claim that Section 5 was still necessary because it still deters racially discriminatory voting practices: "Well, that's like the old—you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work."
Here is Roberts writing today: "These improvements [in racial conditions] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success."
Here was Roberts in April, irked at the mere suggestion that there is still racism in some jurisdictions but not in others: "At what point does that history … stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities? … Your answer is that Congress can impose this disparate treatment forever because of the history in the south. … When can they—when can they—when do they have to stop?"
Here is Roberts writing today: "More than 40 years ago, this Court concluded that 'exceptional conditions' prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today."
There is simply no way to reconcile the John Roberts speaking in late April with the John Roberts writing in late June, beyond Linda's conclusion that April Roberts simply blinked when confronted with actually striking down part of a path breaking civil rights law. Lyle Denniston suggests at SCOTUSblog that when Roberts started thinking about drafting what he was thinking, the opinion "simply would not write." Yet Clarence Thomas found that it would, and did, write. And he alone is left to argue, in his dissent, that Section 5 is constitutionally unjustified:
The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of "grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter," are gone. … Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose. Those supporting §5's reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting. … Admitting that a prophylactic law as broad as §5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.
Walter and Linda, what do you make of these words, coming from the only African-American on the Supreme Court, who argues today that doing away with Section 5 is the best way to "honor the promise" of the Voting Rights Act itself?
Dahlia Lithwick writes about the courts and the law for Slate.