Yes, it is true that most of us (including me) predicted the Supreme Court would strike down section 5 of the Voting Rights Act back in 2009 in the NAMUDNO case. In that case, however, the Court punted, with a serious warning to Congress (not heeded to fix the Act). And we all remember Jeffrey Toobin running to CNN after the oral argument in the health care case to predict it would fall. It didn’t, as Chief Justice Roberts blinked. But I’ve read the transcript from today’s oral argument and I have no hope that the Voting Rights Act will continue in its current form after the Supreme Court is done with it in the Shelby County case.
So why will things be different this time?
First, there’s the issue of respect for the Supreme Court. In the conservative Justices’ minds, there seems no doubt that the Court is miffed that Congress didn’t fix the Act’s (in their view) outdated coverage formula after NAMUDNO. Justice Kennedy seems to think the reason Congress didn’t update in the first place is that they didn’t want to take the time or were too lazy. That’s not it at all—it is that it is hard to come up with a politically acceptable new coverage formula which would pass in the current Congress. (Justice Scalia for his part believes that simply overturning the VRA would be a radioactive move for politicians, something I believe is no longer true—witness Rick Perry dissing the Voting Rights Act section 5 during a Republican presidential debate and getting nary a mention.) Congress had four years to react to NAMUDNO and did nothing.
Second, the real action here in this case is with Chief Justice Roberts or Justice Kennedy. (Alito and Scalia expressed clear hostility to the law, and Thomas already in NAMUDNO said it was unconstitutional.) The thought that the Chief Justice would blink (or be a “statesman”) not once (in NAMUDNO), not twice (in the health care case), but thrice in four years seems unbelievable. And this is Roberts’ signature issue. Remember, he’s the Justice who said that it is “a sordid business” to divvy people up by race, and that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Since he was in the Reagan administration he’s supported a weakened Voting Rights Act. And now he’s given Congress time to fix the problem and they haven’t.
And that leaves Justice Kennedy. Liberals always pin their hopes on him, but they are usually disappointed (outside the context of social issues such as (sometimes) abortion and gay rights). But he’s been very hostile to the VRA and very strong on federalism and the sovereignty and dignity of states. One might say that is a signature issue for him. Reading his questions at oral argument, he is clearly troubled by the Act, and believes it is outdated (claiming that the Marshall Plan was great for then, but this is now). Justice Kennedy seems to believe, wrongly in my view, that section 2 and the use of preliminary injunctions, could do the same work as section 5. In a future post I’ll explain why this is wrong (the burden of proof is different, the substantive standard is different, and the threat of section 2 litigation is not the same bargaining chip as Section 5 is).
The one area of hope which some observers see from Justice Kennedy in today’s oral argument is the suggestion that even if the Act is not constitutional as to some covered jurisdictions, Alabama would be covered under any provision of the Act. I think people are overreading this exchange. Justice Kennedy did not seem convinced—it seems more likely he would buy Justice Scalia’s point that if Congress wants to cover Alabama, let it pass a statute covering Alabama and then justify it.
Let me be clear. If Justice Kennedy or the Chief want to use this as a way to get around a finding of unconstitutionality they clearly could. After all, the Justices in NAMUDNO all (aside from Thomas) engaged in a disingenuous act of statutory interpretation to avoid striking down the Act last time. But this time what is different is that I don’t see Kennedy or the Chief having any appetite to do so.