As expected by many, including me, today the Supreme Court voted 5-4 to declare the formula by which it is determined which jurisdictions are subject to “preclearance” under the Voting Rights Act unconstitutional. Chief Justice Roberts, fulfilling what appears to have been a career-long dream, wrote the opinion, joined by Justices Kennedy, Scalia, Thomas, and Alito. Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.
The whole opinion is available here; SCOTUSblog’s case page (which includes links to articles, briefs, etc.) is here.
“Preclearance” means that the jurisdiction in question must get advance permission from the US Justice Department before making any changes to its voting procedures. The Court did not actually say that Congress lacks the power to subject certain jurisdictions to preclearance. What it did say is that the formula by which the Voting Rights Act determines which jurisdictions are subject to the preclearance requirement can no longer be used. So, in effect, the entire preclearance procedure under the Voting Rights Act has been gutted unless and until Congress comes up with a new formula and amends the Voting Rights Act accordingly. Figure the odds on that happening any time soon.
What’s really striking about Chief Justice Roberts’ opinion is how devoid of serious analysis it is. Basically, he says (a) preclearance imposes a burden on the affected states (that’s true – that is, after all, the point); (b) things have gotten better in the south than they were in 1965 (also true – in large part due to preclearance, as Roberts acknowledges); (c) Congress compiled thousands and thousands of pages of data before reauthorizing the Act’s preclearance formula in 2006, but based on what seems like a fairly perfunctory review, it doesn’t seem to him that they did it right; so (d) the preclearance formula is unconstitutional. Roberts barely even tells us what part of the Constitution he’s relying on in striking down one of the most successful and important pieces of civil rights legislation in the country’s history, to say nothing of demonstrating any level of serious engagement with the factual record before Congress or the principle that – especially in the area of voting, where the Constitution explicitly confers special authority on Congress – the courts are supposed to afford Congress some deference in its choice of how to address identified problems.
Justice Ginsburg’s dissent does a nice job of calling Roberts on the carpet for his crappy opinion. Here are a couple of good quotes:
In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy….
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation….
[T]he Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA….
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.
But, of course, Ginsburg wrote for only four Justices, so her opinion is full of sound and fury….
One is left with the depressing sense that, for John Roberts, it’s been so obvious for so many years that the Voting Rights Act is a bad idea that it hardly requires serious discussion to declare it unconstitutional. After all, he’s been on record since the early 1980s as thinking that the Voting Rights Act was a big ol’ hassle for states and localities, and really, why can’t the feds just leave well enough alone. So, as I’ve said before, all the lefties and centrists who were super in love with Roberts after he cast the 5th vote to uphold Obamacare last year got snookered. It is pretty hilarious to read some of those quotes now in light of what happened today.
johnk says
Sad.
Congress, as it is right now, I don’t feel it.
jconway says
I don’t remember Paula Deen getting appointed to the High Court
hoyapaul says
This decision is again a perfect example of the only thing you can call a Supreme Court decision striking down such an important federal statute: judicial activism. This would be true even if Roberts’s opinion contained “serious analysis,” however that may be defined, which in any case it certainly does not. This is a classic example of an unelected judiciary substituting its views about policy for those of an elected federal branch, full stop.
Politically, I’m not sure how much longer Republicans can rely upon the declining white vote to maintain their current policy stances. But after this decision, they have a lot more freedom to try and delay the inevitable through voter suppression efforts. It’s not going to be pretty.
lynne says
said it better myself…
SomervilleTom says
I fear that too few Americans are alive today who remember the long hot summers of the 1960s.
Too many Republicans believe the lies perpetrated by the GOP specifically constructed to woo racist Southern Democrats in 1968. Too many white Republicans sincerely believe that Clarence Thomas is representative of today’s minority population. Too many white progressives and Democrats believe the fallacy that racism is “solved”, that racism must be intentional and explicit to be problematic, and that “modern America” has “moved on” from the issues of the civil rights era.
As we swelter in today’s summer heat, I suggest that we should not be surprised to see a reprise of scenes from our past. Those who do not know history are doomed to repeat it.
Christopher says
Whether it’s jurisdictions needing preclearance or individuals seeking to purchase a firearm. I see no constitutional clause that can be construed to forbid this. In fact, various voting amendments (most relevantly in this case probably the 15th) expressly grant Congress the power to enforce by appropriate legislation. It’s clearly constitutional; whether it is necessary or appropriate is a political question for Congress to decide. As far as I know Congress has so decided mulltiple times by overwhelming majorities.
Christopher says
That’s not what this was; this is more like calling an out because the umpire didn’t like the batter’s technique.
Bob Neer says
Roberts may be the voice of the angry white male party, on its way out but trying to delay the inevitable as hoyapaul argues, but that shrill voice is hardly one of hubris. It is one of power, talking perfectly legitimately under the absurd constitutional system we accept under which five unelected individuals assert the power to make laws for a nation of over 300 million. Roberts, to paraphrase Bill Gates, could require that every voter bring a ham sandwich to the polls to exercise their franchise and if he could get four justices to agree with him that would be the law. It is unsustainable and unjust, but it is not hubristic.
jconway says
It was nine unelected men in white robes who were ahead if the voters in Brown v Board. I remember reading about “impeach Warren” signs all over the South. We live in a democratic republic that values minority rights and equality over pure democracy. I guarantee you the same voters who killed affirmative at the ballot box would kill VRA I’d given the chance.
The point is not that they are unelected, it’s that these five judges today (four deliberately, Kennedy is just capriciously clueless) forgot the job of the court.
hoyapaul says
I’m not so sure that’s true, since Sec. 5 of the VRA was almost unanimously reauthorized in 2006 by a Republican Congress and signed into law by a Republican president. The only thing even close to a majority favoring VRA repeal are the five justices signing on to the Shelby County opinion.
By the way, when I think of “unelected men in white robes” in the context of race, a group other than the justices of the Supreme Court are the first to come to mind…I suppose you refer to the men in black robes? 😉
AmberPaw says
I was gassed and clubbed in my day. Young men I knew, though not well, died seeking the rights and protections and government accountability that Roberts threw away with shamefully poor writing as well. Just sad.
jconway says
My lefty and libertarian friends can bash me all I want for voting for a ‘corporate centrist’ but their ‘he’s as bad as Bush arguments’ go right out the window when it comes to days like today. And hell to his credit, even Shrub signed the bill. I just feel awful for John Lewis, to go from the high of seeing Obama inaugurated twice to the lows of getting called the n word by teabaggers and now this crap. I really hope we restore this at once. John Lewis and so many other great men and women who fought so hard deserved so much better from their government today.
bostonshepherd says
I’m skeptical Shelby v Holder will have any of the horrible effects dramatized here on BMG. Simply put, now Atlanta and Boston will operate under an identical Voting Rights Act.
What the bemoaners at BMG are implicitly saying is Atlanta, Detroit, and Juneau today are racist while Boston, Indianapolis, and Newark are not. I have a hard time believing this. Percentage minority turnout in Georgia is greater than Massachusetts. Doesn’t this suggest, using Eric Holder’s pet disparate outcome theory, that Massachusetts, not Georgia, is more racist?
The court has been talking about the VRA’s constitutionality problem since Reno v. Bossier School Board in 1999. Why the surprise and outrage now?
Besides, didn’t the court say in Shelby that Congress could keep preclearance if it modified the VRA to repair its constitutionality?
Perhaps the progressive handwringing is less about a 1965 notion of civil rights and more about the loss of federal power over the states. Progressives hate federalism.
lynne says
There are places in the country, including places in MA, once covered byt he preclear provision in the law. There is a system in place with the law to “bail out” of that preclear necessity if you prove you’ve changed, and another one to “bail in” a place previously not covered that has become discriminatory.
Ergo, if Atlanta, or whatever southern jurisdiction you want to complain about, had actually FIXED their problems, they could have been taken out of the need for preclear years ago. That they were NOT is proof we still NEED this law.
hoyapaul says
False. The VRA has little to do with whether there are racist people in Boston and non-racists in Atlanta, both of which are obviously true. Rather, it has to do with increased danger of certain jurisdictions using state power to restrict minorities’ access to the polls. As lynne notes, the VRA has a bail out provision allowing jurisdictions to escape coverage if they prove that it is no longer necessary — something several jurisdictions have in fact successfully done.
As we’ve seen in the last few years, the covered jurisdictions are among the most likely engage in voter suppression efforts under the guise of neutral-sounding justifications (like “preventing voter fraud”). The use of neutral-sounding justifications to discourage minorities from voting was long a favorite tactic of several areas, not all in the South, which is why overwhelming congressional majorities as recently as 2006 deemed the pre-clearance review procedure still necessary.
Given that it was conservatives, and not progressives, that defended the continuing existence of DOMA — as strong an example of “federal power over the states” as you can get — I think you have this distinctly wrong.
David says
It depends what meets your definition of “horrible,” shep. Texas being allowed to immediately put into place its obviously discriminatory redistricting map, and its obviously unfairly burdensome voter ID law, strike me as pretty horrible, and that’s happening right now. Of course, YMMV.