I wrote this column for the Washington Post on the Supreme Court’s decision in Brnovich. It concludes as follows:
It isn’t textualism to follow statutory language only when doing so is congenial to one’s ideological allies. It isn’t textualism to flout statutory language by creating out of thin air extra-textual checks on a disfavored claim. And it isn’t textualism to interpret the Voting Rights Act as one wishes it had been written, not as Congress actually wrote it. To return to Alito’s metaphor, this is what a judicial pirate ship looks like. It flies textualist colors while plundering one of the key statutory achievements of American democracy.
Still, the extent of the pillage shouldn’t be overstated. Plaintiffs will still be able to prevail in a number of Section 2 cases. Above all, these will be challenges to novel or unusual voting restrictions. By definition, these laws weren’t prevalent in 1982. Because of their newness or distinctiveness, their impositions are also likely to exceed the standard burdens of voting in courts’ eyes.
Additionally, nothing in today’s decision undermines Congress’s authority to correct the court’s blunder. There’s not a word suggesting that a more aggressive statutory test — for example, one invalidating any practice that causes a significant racial disparity unless it’s necessary to achieve a substantial state interest — would be constitutionally problematic. Fortuitously, Congress is considering the John Lewis Voting Rights Advancement Act, which would revive a different portion of the law. That bill is the ideal vehicle to fix this problem, too. By enacting some new statutory language, Congress could bring an end to the court’s extra-textual adventurism.