Obviously, there is no explicit connection between today’s Supreme Court decision involving Vermont’s campaign finance laws and the extension of the special provisions of the Voting Rights Act. But there might be a subtle connection if you read between the lines, for the Vermont decision might provide a helpful clue about the views regarding the constitutionality of Section 5 of a Justice who did not actually pen one of the six separate opinions in today’s case–Chief Justice Roberts.
Today’s decision in Vermont provides evidence that the Chief meant what he said when he indicated during his confirmation hearings that he would have great respect for the Court’s well-established precedents. Notice that the Chief joined Justice Breyer’s discussion of stare decisis, whereas the other recent addition to the Court, Justice Alito, used a concurrence to specifically divorce himself from that portion of Breyer’s opinion. Of course, one should be careful not to read too much into this, but what it could portend for Section 5 is that arguments from precedent using South Carolina v. Katzenbach and City of Rome will generate traction with the Chief.
I think this is important because (assuming no changes in the composition of the Court) the fifth vote for the constitutionality of Section 5 will likely have to come from Chief Justice Roberts. Although Justice Kennedy has now seemingly replaced Justice O’Connor as the new swing vote on the Court, I don’t think Justice Kennedy will be the swing vote on the constitutionality of Section 5. Justice Kennedy’s previous decisions place him fairly solidly against race-based remedies and fairly solidly against giving broad authority to Congress in the use of its enforcement power. True, he could moderate his views on these subjects and he may yet find a race-based remedy and use of the congressional enforcement power (outside of the Goodman context) that he does not oppose. It’s just to say I think it is unlikely Justice Kennedy will change his tune. That means those who wish to uphold the constitutionality of Section 5 will have to sing “Hail to the Chief.”
–Mike Pitts