Ellen Katz: Roberts Didn’t Blink

Here is a guest post from Ellen Katz:

    Several people this week have said that Chief Justice Roberts “blinked” on Monday. I disagree. His opinion in NAMUDNO is calculated, shrewd, and (given what he believes about the statute) institutionally smart. The Chief Justice believes Section 5 of the Voting Rights Act is unconstitutional, but he also recognizes that striking it down is both a big deal and something he would rather the Court not have to do. Monday’s contrived statutory holding remands the statute to Congress with a time limit and a warning. Make no mistake, do nothing and we will scrap this statute in the next case.
    Yesterday, Morgan Kousser described the first pages of Chief Justice Roberts’ opinion as dictum. Technically, of course, he is right, but I think we would be better served if we understood this portion of the opinion as the functional holding. Sounds strange, perhaps, but consider both the tone and structure of what Roberts has to say. He does not simply announce that this is a tough, unresolved constitutional question. Instead, he offers a blueprint for striking down the statute. In paragraph after paragraph, he relentlessly pounds home the argument for why Section 5 is unconstitutional. He includes no serious counterarguments. His only gesture in that direction is a boilerplate acknowledgment that Congress is a coequal branch and, by the way, that the district court thought the statute was fine.
    True, Chief Justice Roberts then says he need not resolve the constitutional issue because there is an improbable statutory ruling that enables him to avoid (read postpone) reaching that question. Did Roberts blink? Not a chance. This is a savvy move that, as a matter of function if not formal doctrine, stays a constitutional holding. The Roberts opinion, at bottom, says: we are striking down this statute as unconstitutional but staying our order until the next case presents the same question. When that case comes up in a year or two, we will dissolve the stay and strike down the statute (unless something significant about the statutory regime will have changed by then).
    Before oral argument in NAMUDNO, I was hoping (see here) that the Court would find a way to prompt Congress to reconsider Section 5. Monday’s opinion prods Congress to do just that.

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