And yet the anniversary prompts an ominous reconsideration of the Supreme Court’s role in civil rights. In 1954, the Court launched the federal government’s assault on segregation, with Brown. In 1964, it got out of the way of the political branches, then quickly ratified their work. Today when it comes to racial civil rights, the Roberts Court is an aggressively hostile force. Recall Ackerman’s contention that the 1964 act has taken on the weight of a constitutional amendment. At a literal level, this is of course untrue: the act was not ratified by three-quarters of the states and is not part of the written Constitution. This means that a constitutional amendment is not needed to overturn the Civil Rights Act, which is vulnerable to a subsequent act of Congress or, more to the point, a decision by the Supreme Court.
Ten years ago, even mentioning this possibility would have seemed outrageous. But last June, the Court decided Shelby County v. Holder, striking down Section 4(b) of the Voting Rights Act of 1965 as unconstitutional. Section 4(b) listed the states with a history of voting discrimination that were required to seek preclearance from the Justice Department or the courts before amending their voting laws. The 5–4 decision by Chief Justice John Roberts is nothing short of appalling: as unpersuasive as it is misguided, it is, in Ackerman’s words, “a shattering judicial betrayal” of the civil-rights era. It is also the Roberts Court’s most brazenly activist decision: Congress has reauthorized the Voting Rights Act four times, most recently in 2006, with votes of 390–33 in the House and 98–0 in the Senate. In her brilliant dissent, Justice Ruth Bader Ginsburg summed up the decision’s obtuseness: “Throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Shelby County may be so unique that it portends no harm for the Civil Rights Act. After all, the preclearance regime was extraordinarily invasive. Ackerman calls it the biggest federal intrusion into the prerogatives of the southern states since Reconstruction. But Title II of the Civil Rights Act is also strong medicine, reaching beyond state actors to tell private businesses whom they must serve. It was by far the act’s most controversial provision—and it remains controversial among some conservatives. In 2010, Senator Rand Paul caused a sensation by arguing that the provision in the Civil Rights Act dealing with “private business owners” (ostensibly Title II) is unconstitutional. He quickly walked back his comments, but his father, Ron Paul, proudly continues to make the same argument, and the Tea Party is listening. The Heritage Foundation’s Web site files the McClung decision upholding Title II on its “Judicial Activism” page, tagged to the terms Abusing Precedent and Contorting Text. The Voting Rights Act decision can only embolden Title II’s opponents.
And they just might get a hearing. Three trends in the Roberts Court’s jurisprudence suggest that the justices would be more receptive to a challenge to Title II than any prior Court. First is its disregard for precedent. The Roberts Court has repeatedly ignored prior decisions when doing so enabled a conservative victory—most notoriously in the areas of gun regulation (District of Columbia v. Heller) and campaign finance (Citizens United v. Federal Election Commission). Hence it is little comfort that the Court upheld Title II in 1964. It had also previously upheld the Voting Rights Act and its reauthorizations. Second is the Roberts Court’s impatience with open-ended civil-rights measures, which some justices believe are no longer necessary. “The tests and devices that blocked access to the ballot have been forbidden nationwide for over 40 years,” the Court wrote in Shelby County, dismissing the need for ongoing vigilance against voting discrimination. And third is the Court’s continued disdain for the commerce clause. Remember when Roberts’s decision upholding the Affordable Care Act made the point that the act was not a valid exercise of Congress’s commerce power? He was singling out the section of the Constitution that supports the Civil Rights Act.
The 1964 law is not in imminent danger from the Supreme Court. But it is worth considering how a hostile Court changes the equation from 1964, when the judiciary acted in concert with the political branches. The new paradigm places a premium on presidential leadership, at the very least in nominating judges and justices who are in sympathy with the great statutes of the 1960s. But the battle over the Civil Rights Act shows that presidents who are serious about concrete social progress must do even more.
Lyndon Johnsons, of course, do not come along every four or every 40 years. Even if they did, Johnson brought plenty of darkness (election stealing, a credibility gap, Vietnam) along with the light (Civil Rights Act, Voting Rights Act, Great Society). Moreover, not every president needs to be a legislative genius in order to pass laws. Obama, after all, gambled big on the Affordable Care Act, investing the same type of capital in health care that Johnson invested in civil rights. It is now the law of the land. But the energy and purpose that Johnson brought to the Civil Rights Act struggle remains inspiring, and is a model for all presidents. As Richard Russell, the South’s leader in the Senate during the 1960s, put it to a friend a few days after Kennedy’s assassination: “You know, we could have beaten John Kennedy on civil rights, but not Lyndon Johnson.”