Gerken: Can Congress Take a Hint?

This guest post is written by Heather Gerken:

    NAMUDNO ended not with a bang, but a whimper. The Court unexpectedly issued a modest opinion on Section 5, neither affirming nor invalidating the provision. The ruling was a surprise, largely because few thought the statutory argument — which ultimately formed the basis of the Court’s opinion –had legs.
    As I argue in the American Prospect online, Section 5’s future looks quite dire. The Court quite explicitly casts doubts on all of the obvious arguments for letting Section 5 stand — that it was okay for Congress to apply the statute selectively to Southern states, that Section 5 imposes a minimal burden on those jurisdictions, that the evidence Congress provided was powerful enough to justify the burden it did impose. The Court has done everything, in short, except pull the trigger and strike Section 5 down.
    Astute Court watchers like Rick Pildes and Tom Goldstein have similarly argued that the opinion should be read as an explicit warning to Congress: fix Section 5, or we will fix it for you. The question is whether Congress will doing anything about it.
    I can easily imagine perfectly rational arguments for Congress not to act. It’s hard to figure out a sensible alternative; that is why, as Nate Persily convincingly demonstrates, Section 5 was renewed virtually as-is in the first place. Congress has an unbelievable amount on its plate right now; finding the legislative floor time to pass such an important bill would be quite difficult. And it’s not even clear that the Court will, in the end, pull the trigger. After all, Rick Pildes’ casebook co-author, Pam Karlan, has offered a far sunnier view about Section 5’s fate.
    Finally — and this is where the rubber meets the road — I suspect that most people have a lingering suspicion that Justice Kennedy doesn’t have it in him to invalidate an iconic provision like Section 5. That was certainly the conventional wisdom leading up to the oral argument. If Justice Kennedy wasn’t ready to invalidate Section 5 this time, who is to say he’ll be ready to do so the next time?
    There is no way of answering this question, because Justice Kennedy’s questions at oral argument are all we have directly from him on the subject, and Justice Kennedy is even harder than most to read during oral argument. Nonetheless, here’s what ought to worry Section 5’s supporters. Dahlia Lithwick has asked how Chief Justice Roberts could have written this opinion given his extremely pointed questions during oral argument. My question is why the Justices to Kennedy’s left on the Court joined an opinion that stated (for what was, de facto, a unanimous Court) that Section 5 imposes “substantial ‘federalism costs'” “depart[s] from the fundamental principle of equal sovereignty,” and “raise[s] serious constitutional questions” under even the most generous standard floating around in the briefs.
    Why did the four liberals join such an opinion? If Justice Kennedy wasn’t ready to pull the trigger today, those Justices were presumably free to say whatever they wanted about the constitutional question, and it’s hard to imagine that Chief Justice Roberts’ gloomy statements were precisely what they wanted to say. Perhaps agreement on these points was essential to get Justice Kennedy on board, though I doubt it. Justice Kennedy is perfectly capable of writing separately, as the 4-1-4 decisions the Court has recently handed down confirm.
    The real worry for supporters of Section 5 is the possibility that the Court’s liberals thought that sending a crystal clear, united message to Congress was Section 5’s best hope. That is, the four Justices on the Court may have been as convinced as many commentators are that Section 5 will fall when the case returns, and they were hoping that a unanimous opinion would light a fire under Congress. To me, the fact that the four liberal Justices joined the opinion represents a pretty big hint that Congress needs to act. The question is whether Congress can take the hint.
    As part of a joint project with the Tobin Project and The American Prospect, a bunch of top academics have been brainstorming about what Congress might do to protect Section 5 from invalidation in light of the Court’s opinion. For those interested, the American Prospect will feature a series of guest blogs on the subject during the next day, and I’ve linked to several white papers on Tobin’s website here.

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