March 11, 2007

"Supreme Conflict" and Justice Kennedy's Views on the Constitutionality of the Renewed Voting Rights Act Section 5

I just had a chance to read Jan Crawford Greenberg's new book, Supreme Conflict. It is a must-read for anyone interested in inside gossip on the Supreme Court nomination process and on interactions between Justices (especially on Justice O'Connor's frosty relationships with both Justice Brennan and Justice Scalia). From the perspective of election law, the biggest revelations come in what the various Justices say about Bush v. Gore. Those statements have been reported in the press and criticized by some.

But I was struck by another passage in Greenberg's book of interest to election law. She was discussing the reaction of Justice Kennedy to Congress's rejection of some of the Court's civil rights precedents, and its passage of the Civil Rights Act of 1991. She says that Justice Kennedy "had been shocked by the outry from the civil rights community" to the Court's decisions, and that he said years later in an interview that "he had failed 'to recognize the super importance of our precedents in the area.'" Greenberg added: "As a new justice, he would quickly come to fact that into his decisionmaking. Even his memos to other justices in the years after those civil rights decisions sometimes mention concerns about the public's reaction to their decisions." (Supreme Conflict, pp. 144-45.)

As readers of this blog know, Congress renewed the expiring provisions of the Voting Rights Act this past summer , and there is a very big question, now before a three-judge panel in the NAMUDNO case, over whether the Court will strike down Section 5 of the Act as unconstitutional. In the forum on VRA renewal that I organized on the blog, there seemed widespread agreement that Justice Kennedy could hold the deciding vote on this issue.

These quotes suggest that, despite Justice Kennedy's concerns about the use of race in redistricting as expressed in the Shaw line of cases and elsewhere, he is likely to think long and hard before reversing precedent and striking down section 5 as constitutional. That's likely going to be seen as some reason for hope in the voting rights community.

Posted by Rick Hasen at March 11, 2007 07:39 PM