THE COURT IN ACTION: In this excerpt from the oral argument, Debo Adegbile of the NAACP Legal Defense and Educational Fund explains why, even when a case is won under Section 2 of the Voting Rights Act, enforcing the victory often requires Section 5. He is questioned by Justice Scalia.
by Bertrall Ross, Assistant Professor of Law at UC Berkeley School of Law
Are the temporary provisions of the Voting Rights Act a relic of the civil rights era? When Congress reauthorized the statute in 2006 for another 25 years, were the legislators simply living in the past, unwilling and perhaps unable to accept that things have changed? Is the Supreme Court needed to educate legislators that things have indeed changed despite the voluminous and comprehensive record that Congress has compiled suggesting otherwise? After oral argument in Shelby County v. Holder, the conservative justices’ answers to each of these questions seemed to be yes. If a majority of the justices subscribe to this view when the Supreme Court issues its opinion, the overturning of the temporary provisions of the VRA will be a stunning repudiation of Congress and the long-standing model of deference to congressional exercises of power to enforce the Fourteenth and Fifteenth Amendments.
In the recent past, when Congress enforced the Fourteenth Amendment to provide minorities with statutory protection against discrimination, the Court deferred. So long as the ends were legitimate and the means were plainly adapted to that end, the Court would not second-guess congressional determinations. This model of judicial deference applied at a time when racial and other minorities were generally considered politically marginalized. Such deference reflected judicial trust of congressional judgments that particular groups needed protection from state actors. When upholding the constitutionality of the Voting Rights Act in 1966 as an appropriate exercise of congressional power, the Court acknowledged the unusual and far-reaching nature of the Act, but it nonetheless deferred to congressional determinations based on a comprehensive and voluminous record that the temporary provisions were needed to achieve voter equality in particular jurisdictions. Thirty years later, the Supreme Court described the Voting Rights Act of 1965 as a model example of congressional enforcement authority for which much deference was properly given.
What has changed? It seems that for at least some of the conservative justices, racial minorities are no longer the politically marginalized group of the past. Rather, to paraphrase the concurring opinion of three conservative justices in a recent race discrimination case, racial minorities have evolved into a politically important constituency that politicians and presumably Congress needs to please – a minority constituency that is purportedly even more powerful than the majority. Despite Congress’s compilation of an expansive record reflecting the continuing need for the temporary provisions of the VRA in the jurisdictions to which it applies, the tenor of oral argument suggests that it is unlikely that a conservatives on the Court will defer to Congress. For Justice Scalia, this Act is simply perpetuating a “racial entitlement,” as he put it at oral argument, an entitlement that the nearly unanimous Congress that re-authorized the VRA presumably could not resist giving because of the political power of racial minorities. Overlooked in this justification for judicial second-guessing of Congress is robust evidence that racial minorities continue to be subordinated in politics and society.
If the conservative argument is allowed to carry the day, it will represent a critical step backwards not only for voter equality, but for racial equality, congressional authority, and the institutional legitimacy of the Supreme Court. Any federal statute advancing the protection of racial and other minorities will be subject to close scrutiny with a presumption that it is simply the perpetuation of a group entitlement, driven by those minorities’ supposed political power. Near unanimous congressional agreement on the need for the statute combined with a voluminous and comprehensive record supporting this assessment will not be enough to overcome this presumption. We will edge close to a return to when judicial second-guessing of congressional judgments was the norm and a principal inhibitor of progress. During the New Deal era of the 1930s, a non-deferential Supreme Court stood as an obstacle to economic progress on the basis of a laissez-faire conception of economics that came at the cost of its institutional legitimacy. Now, it looks like a similarly non-deferential Supreme Court, relying on a conception of politics in which minorities are more politically powerful than the majority, may decide to stand as an obstacle to continued progress on racial equality.
Bertrall Ross is an Assistant Professor of Law and an Executive Committee Member of the Thelton E. Henderson Center for Social Justice at the UC Berkeley School of Law.