Usually it takes years to judge when the Supreme Court gets something very wrong. Think of Justice Kennedy’s opinion for the court in the 2010 campaign-finance case, Citizens United, freeing corporations to spend money on elections. He wrote that the “appearance of [corporate] influence or access will not cause the electorate to lose faith in our democracy,” a point that remains hotly debated even as the amount of money in federal elections skyrockets. But the conservative justices’ decision this past June in Shelby County v. Holder, striking down a key provision of the Voting Rights Act, has already unleashed in North Carolina the most restrictive voting law we’ve seen since the 1965 enactment of the VRA. Texas is restoring its voter ID law which had been blocked (pursuant to the VRA) by the federal government. And more is to come in other states dominated by Republican legislatures. Substituting their own judgment for that of Congress, the five justices in the Shelby County majority expressed confidence that the act’s “preclearance” provision was no longer necessary, and that there would be ample other tools to fight discrimination in voting. That the conservative justices have already been proven wrong a few scant weeks after the decision came down offers little solace for the voters of North Carolina, who ironically will have to try to fix the problem using the very mechanism of voting—which the North Carolina legislature is inhibiting.
Back in 2009, the court considered whether to strike down Congress’ renewal of the rule requiring jurisdictions with a history of racial discrimination in voting to get federal approval before making changes in their voting laws. The feds had to withhold approval unless the covered jurisdictions demonstrated the law would not make minority voters worse off and was not motivated by an intention to do so.
During oral arguments in that 2009 case (which ultimately ducked the constitutional question), Chief Justice Roberts judged the law unnecessary, analogizing the federal approval requirement to an “elephant whistle.” “You know, I have this whistle to keep away the elephants. You know, well, that’s silly. Well, there are no elephants, so it must work.”
Similarly, during arguments in the Shelby County case, Justice Kennedy opined that other provisions of the Voting Rights Act, especially Section 2, would still protect minority voters. The Shelby County opinion itself declared that “Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2.”
Congress, of course, had made a different judgment about the continuing deterrent effect of the need to obtain federal preclearance, and Justice Ginsburg’s dissent in Shelby County analogized chucking the preclearance regime to “throwing away your umbrella in a rainstorm because you are not getting wet.” In a sense, the empirical question can be said to be whether the elephant whistle was never necessary; or the umbrella was working the whole time. It took only months to ascertain that the umbrella was probably working.