In an opinion brimming with a self-confidence that he hides behind a cloak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act. The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true. In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line, even if the court wants to wait another year or two to pull the trigger. Imagine striking down affirmative action and the Voting Rights Act in the same week!
Section 5 of the Voting Rights Act requires certain states and parts of states (mainly in the South) to get permission from the federal government before changing voting rules. The law puts the burden on jurisdictions with a history of racial discrimination to demonstrate that any voting change — from a voter-ID law to moving a polling place — won’t make the minority voters the law protects worse off. In Section 4, Congress provided a formula for determining the jurisdictions to which Section 5 applies — but the data used to construct the formula is from the 1960s or 1970s. Congress renewed the act, most recently in 2006, without touching the old formula.
In Tuesday’s opinion, the court held that the formula was unconstitutionally outdated. The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.
The tone of the opinion is one of dutiful resignation: gravely, the court must strike down an act of Congress. Chief Justice Roberts reminds us that the court could have struck down the act in a 2009 case, but it gave Congress another chance.
Justice Ruth Bader Ginsburg’s dissent mocks this posturing: “Hubris is a fit word for today’s demolition of the V.R.A.” The court could have acted more narrowly, for example, by saying that Alabama’s continued problems with minority voting rights justified the law’s application to Shelby County even if not elsewhere. As it did in Citizens United, the court took the broad path when the narrow path would have limited the court’s damage.
Full Article: The Chief Justice’s Long Game – NYTimes.com.