Supreme Court Justice Anthony Kennedy recently made an important and wise comment when he said that with gridlock plaguing our political system, “A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.” Considering the controversial history of recent Supreme Court decisions regarding elections, and the pending case regarding the Voting Rights Act, the nine unelected justices should uphold the Voting Rights Act, which was not passed under gridlock but was passed by overwhelming majorities of both parties, in both the House and Senate, including those representing states covered by the act. In my view the act should be upheld, period. For conservative justices who might be inclined to overturn the act or Section 5 of the act, I would suggest they consider that this would violate the conservative principle against extreme judicial activism. It would violate the conservative principle of avoiding political decisions. It would violate the conservative principle against the unelected judicial branch negating overwhelming agreement of the elected executive and legislative branches, which have substantially more expertise regarding free elections than those of “narrow legal background.”
I would also suggest, and this important, that a court that has taken a highly restrictive position ruling against standing in long lines of (in my view) worthy litigants should consider whether the state of Alabama, which has a long and continuing history of voting rights abuses, should have standing in this case.
The standing issue is important. Chief Justice John Roberts has said it might be advisable for the Congress to update which states should be covered. But as Justice Elena Kagan suggested during oral argument, no matter what formula Congress might devise, Alabama would be covered because of its long and continuing history of voting rights abuses.
Later, picking up this theme, Kennedy asked why Alabama would be injured in this example, because Alabama would arguably be covered by any law. Most media have missed the potential importance of this exchange. I would suggest that Alabama should have far less right to standing in this case than far more worthy litigants (such as women challenging discrimination at work) who have been denied standing by the court.