Before there was Shelby County there was NAMUDNO, a case that punted on the constitutionality of a key part of the Voting Rights Act in an almost unanimous opinion. I wrote in the Supreme Court Review in 2009 that the liberals’ decision to join the Chief Justice’s majority opinion appeared to be strategic, to give Congress more time to fix the problems the Court perceived with the VRA. (It didn’t.) But I later wondered, as in this 2013 Slate column, whether the Justices were savvy or suckers. Here were my three theories:
The liberals are buying time. In 2009, it sure seemed from oral argument that the five conservative justices were ready to strike down Section 5 of the Voting Rights Act (the part that fell last week) as exceeding congressional power. But in the end, the court did not do that. Instead, eight of the nine Justices (with Justice Clarence Thomas dissenting) joined in a tendentious and unsupportable analysis of the voting rights statute to avoid deciding the constitutional question. The price of avoiding a 5–4 decision striking down part of the Voting Rights Act was likely the liberals’ agreement to cast doubt on the law’s constitutionality.
The price was worth it, even now. That 8–1 ruling gave Congress a chance to do something to fix the Voting Rights Act (though Congress didn’t). The decision also bought four more years of life for Section 5, during a period of intense redistricting following the 2010 census, and while states like Texas and South Carolina passed new strict voter ID laws. It was better to have the law on the books for a little longer than watch it fall.
The liberals are trying to run out the clock. Sure John Roberts is playing a long game, but time is on the liberals’ side. Democrats have won the popular vote in five of the last six presidential elections, and demographics favor them in continuing to win the presidency. If Democrats can win the next presidential election, the chance of replacing at least Justice Scalia or Justice Kennedy are pretty high, given that both are in their 70s. Liptak remarked that Scalia writes like a man in a hurry. If some decisions can be put off long enough, they might remain unresolved till the court shifts.
The liberals are trying to highlight the dangers of the Roberts Court. The 2009 Voting Rights Act decision should have been a wake-up call for Congress and the American public about the invalidation of the law we just saw. It’s the same with the affirmative action case, as well as last year’s health care case, which cut back significantly on Congress’ commerce clause powers. Dissents are one way to get the public’s attention. But they are not the only way. When the liberal justices sign on to an opinion that anticipates future reversals of Supreme Court precedent but doesn’t yet go quite that far, it’s a sign of significant behind-the-scenes compromise to avert disaster.
Well now comes this news in Judge Tatel’s book, as reported by Joan Biskupic for CNN:
In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA’s Section 5 intact, although its reasoning laid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)
When the Supreme Court ruled in 2009, Tatel said, “What I couldn’t figure out was why the four liberal justices had joined the Chief’s majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5’s constitutionality? Why had they gone along with that part of the Chief ’s opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions.”
“The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5’s constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5,” the judge wrote. “With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement.”
Congress never acted, and Tatel contends the 2009 compromise cost the liberals: “They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new ‘equal sovereignty’ doctrine with potentially profound implications,” Tatel wrote of the principle that restricted Congress’ ability to single out certain states, in this situation because of past discriminatory practices. “The Court’s opinion in Northwest Austin thus planted the seeds for Section 5’s destruction.”