Could Justice Ginsburg Really Have Believed Congress Would Fix the VRA in 2009?

Josh Blackman poses the question on Twitter following my earlier post.  And I think this piece in American Prospect by Heather Gerken from 2009 shows the answer is yes, though it was a longshot:

Finally, it’s possible that the cavalry might come to Section 5′s rescue, in the form of a congressional solution. The oral argument in April already prompted one prominent scholar to act before the Court issued its decision. And it’s hard not to read the decision as a shot across the bow, giving members of Congress a chance to fix the problem before the Court fixes it for them. A number of commentators — including American Prospect Online guest bloggers — have come up with potential fixes, ranging from allowing civil-rights groups to “opt in” to the Voting Rights Act to creating a national right to vote, from requiring local officials to consider the impact of their decisions on participation rates to proactive bailout. Many of these proposals draw on conversations begun at a conference hosted by the Tobin Project and the American Law Institute on elections research and reform in February 2009 or build upon work done for the leading collection of scholarship on Section 5′s renewal gathered here.

Depending on Congress to save the day means betting on a long shot. Congress is powerful, but it’s a lumbering giant, one that often requires a fairly sizeable crisis to get it to budge. Whether the Supreme Court’s implicit threat is enough of a prod remains to be seen. But that, of course, is just what makes for a good cliffhanger.

More on 2009 thinking in my 2010 piece for Supreme Court review on NAMUDNO and Citizens United.

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