by Garrett Epps (June 25, 2013)
"Hubris is a fit word for today’s demolition of the [Voting Rights Act]," Justice Ruth Bader Ginsburg wrote in her dissent from the 5-4 decision in Shelby County v. Holder, announced Monday.
She nailed it.
The decision invalidated the requirement of "preclearance" of voting changes by states and jurisdictions with particularly bad records of racial discrimination. (My colleague Andrew Cohen looks at the practical effect of this decision on voting rights.) But beyond that, it illustrates the absolute contempt that the Supreme Court’s conservative majority harbors toward what is, after all, the central branch of our federal government: Congress, elected by the people and charged with exercising "all legislative powers" granted by the Constitution.
A brief reading of the Constitution reveals how seriously the Framers took the idea of congressional centrality. An even briefer glance at the Fifteenth Amendment shows that the Framers of that measure trusted Congress, not courts, with setting national policy against racial discrimination in voting.
Not this Court, which Monday invalidated Section Four of the Voting Rights Act — not on the grounds that it hasn’t worked; not even on the grounds that it won’t work; but on the grounds that the Court didn’t think Congress did as good a job as it could have.
In an opinion by Chief Justice John G. Roberts, the five conservatives (Roberts, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito) brushed aside a measure they explicitly agreed was (1) needed when originally enacted (2) dramatically successful since enacted and (3) reauthorized by Congress four times over 40 years, each time with a detailed legislative process and with careful adjustment to its terms.
To understand the success of the VRA, we must briefly review how it works. The act as a whole forbids certain kinds of manipulation of voting laws to exclude or dilute minority votes. The "coverage formula" provision in sections 4 designate certain sections of the country, on the basis of history, as being the most flagrant offenders of the Fifteenth Amendment’s command that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Under Section 5, those jurisdictions had to get preapproval from the Justice Department or from a federal court before they could change their voting procedures at all. The reason was that previous voting-rights laws had been neutralized when the Deep South jurisdictions invented new ways not covered by the laws of blocking black voters. This time, the state would have to justify its restrictions, rather than forcing the government and citizens to go to court each time a new stratagem appeared.
Each of the first three times the act was reauthorized, Congress changed slightly the Section Four formula for determining "covered jurisdictions." It also included new procedures to allow jurisdictions to get out of preclearance by proving they had cleaned up their act. The most recent reauthorization, in 2006, kept the "coverage formula" the same, but adjusted the law carefully to cover new forms of racial discrimination not apparent in 1965.
After that change, the vote to approve was almost unanimous in a Republican-led House and entirely unanimous in a Democratic-led Senate, and the bill was signed into law with great flourish by a Republican President, who hailed it, correctly, as "an example of our continued commitment to a united America where every person is valued and treated with dignity and respect." It was, by any sane model of self-government, an American success story, of a flexible, successful law, adjusted for changing conditions, achieving a significant national goal.
On Tuesday, at the Court, this entire successful 45-year bipartisan effort was brushed aside as farce. The factual record amassed in 2006 was extensive, the majority concedes; but it is also irrelevant. "Congress did not use the record it compiled to shape a coverage formula grounded in current conditions … we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today."
The evidence for this startling assertion was … well, there was no real "evidence," if by that you mean proof. What there was instead was a simple declaration that Congress must not have used the record because it didn’t change the Voting Rights Act enough. The Court could have done a better job, and the Court didn’t think the problem was such a big deal any more after all.
The idea that the Court should approach congressional statutes with a presumption of contempt has few grounds in the Constitution or history generally.
As Andrew points out, in practical terms this result is bad enough. But beyond the question of voting rights lies this underlying contempt for Congress. Stanford Law Professor Pamela Karlan described the emerging attitude brilliantly in her recent essay, "Democracy and Disdain." We saw it displayed during oral argument in the health-care cases, when, for example, Justice Scalia suggested striking down the whole law if any part of it was unconstitutional, on the grounds that Congress couldn’t be trusted to fix it to the Court’s satisfaction. It has been apparent in the campaign-finance cases, which dismiss the judgments of legislators on the role of money in politics on the grounds that, in essence, they must be rigging the system to get themselves re-elected. It also glimmers as the substrate of decisions restricting anti-discrimination laws, reading broad language more and more narrowly on the cynical grounds that Congress could not have meant what the statutes seem to say.
The idea that the Court should approach congressional statutes with a presumption of contempt has few grounds in the Constitution or history generally; it has even fewer in the specific area of voting rights. The preclearance requirement, the majority says, "imposes substantial federalism costs’ and ‘differentiates between the States, despite our historical tradition that all the States enjoy equal sovereignty.’" In addition, it suggests that preclearance violates the Tenth Amendment’s rule that "all powers not specifically granted to the Federal government are reserved to the States or citizens." But it makes no attempt to apply these quasi-constitutional platitudes to the text of the provisions at hand. That’s because they don’t apply. The Fifteenth Amendment makes clear that states have no "reserved power" over violations of the right to vote "by any State on account of race, color, or previous condition of servitude." These are transferred from state authority to federal prohibition. And Congress, not the courts, is to enforce that prohibition "by appropriate legislation."
In other words, the majority’s limits on Congress’s power do not flow from the text, history, or structure of the Constitution; as Ginsburg’s dissent persuasively shows, they do not flow from the Court’s earlier precedent either. They flow from a sense by five justices (none of whom has ever served a day in legislative office) that Congress, on the whole, can’t do as good a job at anything as they can.
This is hubris indeed. Today it has damaged the ability of citizens to use the ballot to call their rulers to account. But that damage is only a part of a hole slowly widening in the fabric of constitutional congressional authority. There’s no reason to believe that this majority does not intend further unraveling in the near future.