The Scalia Enigma in NAMUDNO

There’s been lots of armchair psychoanalysis of the Justices in Monday’s voting rights case. Heather Gerken says the liberals signed on to Chief Justice Roberts’ opinion containing a lot of troubling language about the constitutionality of section 5 of the VRA to send a “crystal clear, united message” to Congress to amend the Act before 5 justices strike it down. There’s been debate over whether Justice Kennedy will ever be ready to pull the trigger and declare a crown jewel of the civil rights movement unconstitutional. And of course the Chief Justice either engaged in an act of statesmanship (Sam Issacharoff) or blinked (me).
But what of Justice Scalia? Why didn’t he vote with Justice Thomas that the Act was unconstitutional? At oral argument, Justice Scalia was as skeptical of the constitutionality of the Act as the Chief Justice. And the bailout argument ultimately adopted by the Court should make Justice Scalia squirm. When it comes to statutory interpretation, Justice Scalia is a big believer in the plain meaning and following statutory precedent set by the Court. Here, the precedent set in City of Rome was that only political subdivisions that register voters which does not include the MUD could bail out. Here is how the Chief deals with this problem in the NAMUDNO opinion:

    In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights Act Amendments of 1982, 96 Stat. 131,codified at 42 U. S. C. s1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act–if anything, that logic compels the opposite conclusion.

I would have expected Justice Scalia to respond that Congress did not “expressly repudiate” City of Rome in the 1982 Amendments to the VRA. City of Rome is not mentioned in the 1982 amendments (compare this to Georgia v. Ashcroft and Bossier Parish, which are both expressly repudiated (at least in part) in the 2006 amendments). Nor is the Chief Justice’s reading of the statute the most natural reading of what the 1982 amendments did with respect to bailout. Given the controlling Supreme Court precedent in City of Rome, one would have expected Congress to state clearly that bailout would be available even those subdivisions that do not register voters. But that change was never made.
Indeed, though Justice Scalia would not look at committee reports, I did. The 1982 Senate Report (which has been very influential in assessing the meaning of the VRA, see Thornburg v. Gingles), mentions City of Rome’s constitutional holding many times with approval, but it never makes the point the Chief does here. Indeed, the only Senate Report reference I could find to the relevant amendment to the bailout provision reads as follows in its entirety:

    THE STANDARD FOR BAILOUT IS ALSO BROADENED BY PERMITTING POLITICAL SUBDIVISIONS IN COVERED STATES, AS DEFINED IN SECTION 14(C)(2), TO BAIL OUT ALTHOUGH THE STATE ITSELF REMAINS COVERED. UNDER THE NEW STANDARD, WHICH GOES INTO EFFECT ON AUGUST 6, 1984, A JURISDICTION MUST SHOW, FOR ITSELF AND FOR ALL GOVERNMENTAL UNITS WITH ITS TERRITORY, THAT (1) FOR THE 10 YEARS PRECEDING THE FILING OF THE BAILOUT SUIT, IT HAS A RECORD OF NO VOTING DISCRIMINATION AND OF COMPLIANCE WITH THE LAW; AND (2) IT HAS TAKEN POSITIVE STEPS TO INCREASE THE OPPORTUNITY FOR FULL MINORITY PARTICIPATION IN THE POLITICAL PROCESS, INCLUDING THE REMOVAL OF ANY DISCRIMINATORY BARRIERS.

(my emphasis)
Of course, section 14(c)(2) is the part of the VRA that defines political subdivisions to be those that register voters to vote. Nothing in the committee report suggests that Congress was trying to change the definition of political subdivision for bailout purposes to overturn City of Rome.
Why did not Justice Scalia descry Chief Justice Roberts’ analysis here as “faux judicial restraint,” as he did in excoriating the Chief’s opinion in Wisconsin Right to Life II? The only answer I can come up with is that Justice Scalia has given up on limiting congressional power when it comes to statutes dealing with race, something he suggested in Tennessee v. Lane. But then why the attitude at oral argument? Why was this not a 7-2 opinion?

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