In yesterday’s Supreme Court decision in Bartlett v. Strickland., Justice Ginsburg wrote: “I join JUSTICE SOUTER’s powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality’s interpretation of s 2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute’s estimable aim. Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of s 2.” I wrote yesterday that “While Justice Ginsburg in her short dissent urges Congress to amend Section 2 to allow for the kinds of claims raised in this case (much like Congress recently did in amending Section 5 to undo (or partially undo) the Court’s decision in Georgia v. Ashcroft), it’s a risky strategy before this Court, which could then strike down an amended section 2 as unconstitutional.”
Orin Kerr finds it problematic that Justice Ginsburg is telling Congress what they should do, believing it undermines judicial independence. Bob Bauer thinks that Congress is unlikely to act now, because it is not clear what Congress should do (that is, there’s no clean “Bartlett v. Strickland fix,” the way there was a “Georgia v. Ashcroft fix”).
I think Bob is right to at least this extent. There won’t be the will or interest to revisit the VRA until after the Court speaks again on the constitutionality of section 5 in the NAMUDNO case at the end of this term.