Pam Karlan has posted this paper on the ACSBlog (link via Ed Still). This is a very important paper, the first one I think to seriously respond to the questions I have raised on the topic. (Others have responded in congressional testimony, mostly with platitudes about Congressional power.) I look forward to reading Pam’s paper more closely. From what I can tell from my initial look, the main place I quarrel with the paper is on Pam’s prediction of how the new Roberts Court is going to deal with the “new federalism” cases. There’s not a mention of Justice O’Connor’s position as the swing voter in Tennessee v. Lane, and the replacement of O’Connor and Rehnquist (whose vote also mattered in Hibbs) with Alito and Roberts.
I wonder whether Pam would agree with me that, despite our disagreement over the likelihood of a Supreme Court overruling of the renewed provisions of the VRA, some changes to the VRA would enhance its chances of being upheld, such as the proactive bailout proposal I have made. I know that Laughlin McDonald opposes what he views as a “preemptive weakening” of the statute. I don’t think it is preemptive. I fear that a Supreme Court decision striking down the renewed VRA provisions would do a great deal of damage: “[I]t is not clear that the political coalition that could pass the renewed VRA in its current form would reach agreement on a narrower VRA after Supreme Court invalidation. In addition, and crucially, these arguments ignore the effect of having a decision on the books that partially overrules the VRA. As I recently told the Senate Judiciary Committee, a Supreme Court holding striking down section 5 of the Act could pave the way for striking down the (now more important) section 2 of the Act – under which key voting rights litigation now proceeds, and other civil rights laws as well. If section 5 is held to exceed Congressional power, might other civil rights laws be held to do the same?”