Why did the liberal justices sign on to the Northwest Austin opinion in 2009? Clearly, it was the price of the compromise to buy the Voting Rights Act a little more time. They must have expected — or desperately hoped — that Congress would take the hint and update the formula that determines which states and localities are covered by the Section 5 preclearance requirement. A near-unanimous opinion, they may have thought, would make a Congressional response more likely; that the court was speaking with close to one voice seemingly put the issue beyond partisanship. Only in hindsight is it clear that this expectation was doomed by Congressional dysfunction, leaving the liberal justices on a limb they had knowingly, if reluctantly, climbed.
Was the price of compromise too high back in 2009? In retrospect, the answer is yes. The liberal justices’ acquiescence to near-unanimity placed a fig leaf on a truly radical project to curb the civil-rights enforcement authority that the framers of the 14th and 15th amendments explicitly gave to Congress. It’s admittedly a long shot even in hindsight, but a powerful dissent four years ago might have been the clarion call that just might have shaken Congress out of its torpor and persuaded it to immunize the Voting Rights Act from the charge that the application of Section 5 was, in the chief justice’s words, “based on decades-old data and eradicated practices.”
I offer a somewhat different take on the liberal Justices in this Slate piece and my draft APSA paper.