When people talked during the presidential campaign about the potential impact of the election on the Supreme Court, most meant the impact on the court’s membership: whether Barack Obama or Mitt Romney would get to fill any vacancies during the next four years. The vote on Nov. 6 settled that question, obviously, but it also raised another tantalizing one: what impact will other developments during this election season, beyond the presidential vote itself, have on the nine justices? I have two developments in mind: the vote in four states in support of same-sex marriage, and the run-up to Election Day that saw both Democrats and federal judges pushing back against Republican strategies devised to selectively minimize voter turnout. Both are directly relevant to cases on the Supreme Court’s current docket, and it’s worth at least considering whether either or both are potential game changers. If so, it wouldn’t be the first time in Supreme Court history that timing turned out to be everything.
Last week, the court agreed to decide the constitutionality of Section 5 of the Voting Rights Act, the provision that requires states across the old South, plus Texas and smaller jurisdictions around the country, to get federal permission before making any changes to their voting procedures. It was totally predictable that the court would take this case, and in making that prediction back in the spring, I described this latest challenge to the Voting Rights Act as “catnip” to the Roberts court, given the majority’s skepticism toward government policies that acknowledge the country’s racially fraught history by taking race into account today.
Stripped of its doctrinal framing, which I’ll discuss in a future column, the argument at the heart of this case, Shelby County v. Holder, is that Section 5, reauthorized by Congress in 2006 for another 25 years, is an anachronism, a continuing insult to states that have long since cleaned up their act and have put behind them the racist vote suppression that led to the enactment of the Voting Rights Act in the first place.
In the abstract, against the background of the election of an African-American president, that argument has indisputable force. “Things have changed in the South,” Chief Justice John G. Roberts Jr. wrote in 2009, when the court took an inconclusive swipe at the law in an earlier case. The court had serious doubts, he wrote then, about whether the “current burdens” imposed by Section 5’s “pre-clearance requirement” were “justified by current needs.”
Full Article: Changing Times – NYTimes.com.