Calling it an “embarrassment” in this Q&A, Nick expresses views on the majority opinion in Brnovich that are much harsher than mine. Given the inherent ambiguity of section 2 as revised by Congress, and the genuine difficulty of applying it to the myriad situations in which plausible claims can arise, the Court was confronted with providing some sort of gloss on the statutory text, whether the five factors that Justice Alito invoked (in a jurisprudential approach reminiscent of Justice Breyer, as when interpreting the Necessary and Proper Clause in Comstock, for example) or Nick’s own “disparate impact” analogy to Title VII. (To complain that the Brnovich majority is not being “textualist” in its statutory interpretation, and then to criticize the Court for adopting a different non-textualist gloss on the statute, strikes me as a little like wanting to have one’s cake and eat it too. I also frankly don’t know what it would have meant to be a “textualist” in Brnovich when the statute’s text was inherently incapable of resolving the case, and when the statute’s own “totality of circumstances” inquiry is a textualist invitation to go beyond the text itself in developing a judicially crafted set of doctrines to implement the text as cases arise.)
But the more interesting question going forward, it seems to me, is what if anything Congress is capable of doing in updating the VRA. As Nick correctly says: “Federal legislative action is a clean, powerful fix. Brnovich was just a decision involving a federal statute. In theory, if Congress doesn’t like a court ruling about a federal statute, all Congress has to do is change the statute.” Easier said than done, of course, given the filibuster, as Nick also rightly observes. I’ve argued that Congress should consider a new national preclearance requirement, but limited to just congressional elections, as a way to redress both Brnovich and Shelby County (and tackle partisan gerrymandering) without running into potential constitutional difficulties under the “congruence and proportionality” doctrine of Boerne and related cases. That type of statute, too, would require overcoming the filibuster obstacle one way or another.