Katz: NAMUDNO, Ricci and Bush v. Gore

Ellen Katz sends along this guest post:

    In his post yesterday, Guy Charles observes that several of the justices in NAMUDNO were animated by their deep suspicion of Congress. Neal Katyal and Debo Adegbile cited record evidence as supporting and justifying particular congressional findings and beliefs, but these claims rang hollow to Justices convinced that Congress made no actual findings and held no actual beliefs beyond a conviction that it would reauthorize this thing no matter what. The record, in their view, was assembled not to inform and guide decisionmaking but instead to justify a preordained result. Observe Justice Scalia’s query to Debo: “Do you ever seriously expect congress to vote against a reextension of the Voting Rights Act?”

    Guy rightly links this skepticism about Congress with suspicion the Justices voiced last week in the New Haven firefighters case where several of the Justices seemed convinced that New Haven couldn’t be trusted to assess whether the disputed test was a BFOQ, because these Justices believed the city was going to throw the test out once the racially disparate impact was identified. A particular racial outcome was desired and it was going to be achieved, no matter what, or so some Justices seemed to believe.
    If a majority of the Justices pursue this line of thinking, both Ricci and NAMUDNO are lining up as plausible sequels to Bush v. Gore, decisions in which the Court so mistrusts a democratically accountable actor that it denies that actor the deference that it would seemingly otherwise be due. In Bush v. Gore, this sentiment manifested itself not in the substantive equal protection holding, but instead on the question of remedy, namely the Court’s refusal to remand the case to the Florida Supreme Court. In both Ricci and NAMUDNO, judicial mistrust is more likely to shape the substantive holdings– in Ricci, by racheting down the amount (and perhaps whole eliminating) race consciousness as a permissible consideration under the Equal Protection Clause, and in NAMUDNO, by racheting up dramatically what Congress must show before reauthorizing (and possibly enacting) civil rights legislation.

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