Two years ago, the Supreme Court looked over a cliff and decided not to jump. The question was whether a core section of the Voting Rights Act of 1965, as renewed by Congress in 2006 for another 25 years, was constitutional. A majority opinion by Chief Justice John G. Roberts Jr. strongly suggested that it wasn’t. The section’s provisions “raise serious constitutional questions,” the chief justice said. He suggested that the administrative burdens the law places on the states where black citizens once faced nearly insurmountable obstacles to voting were no longer justified: “Things have changed in the South.”
During the April 2009 argument in the case, Northwest Austin Municipal Utility District v. Holder, Chief Justice Roberts and Justice Anthony M. Kennedy, in particular, appeared exasperated by the failure of Congress to take those changes into account when it renewed the law in the same format as the previous renewal in 1982. An iconic achievement of the civil rights era seemed headed for history’s dustbin, most likely by a vote of 5 to 4, and an anticipatory outcry began to build. But then either the chief justice or Justice Kennedy, or maybe both, blinked.