The 'Hubris' of the Supreme Court's Voting Rights Ruling

Five of the nine justices negate a half-century of successful bipartisan self-government on the grounds that they could have done a better job.
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"Hubris is a fit word for today's demolition of the [Voting Rights Act]," Justice Ruth Bader Ginsburg wrote in her dissent from the 5-4 decision in Shelby County v. Holder, announced Monday.  

She nailed it.

The decision invalidated the requirement of "preclearance" of voting changes by states and jurisdictions with particularly bad records of racial discrimination. (My colleague Andrew Cohen looks at the practical effect of this decision on voting rights.)  But beyond that, it illustrates the absolute contempt that the Supreme Court's conservative majority harbors toward what is, after all, the central branch of our federal government: Congress, elected by the people and charged with exercising "all legislative powers" granted by the Constitution.  

A brief reading of the Constitution reveals how seriously the Framers took the idea of congressional centrality.  An even briefer glance at the Fifteenth Amendment shows that the Framers of that measure trusted Congress, not courts, with setting national policy against racial discrimination in voting.  

Not this Court, which Monday invalidated Section Four of the Voting Rights Act -- not on the grounds that it hasn't worked; not even on the grounds that it won't work; but on the grounds that the Court didn't think Congress did as good a job as it could have.

In an opinion by Chief Justice John G. Roberts, the five conservatives (Roberts, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito) brushed aside a measure they explicitly agreed was (1) needed when originally enacted (2) dramatically successful since enacted and (3) reauthorized by Congress four times over 40 years, each time with a detailed legislative process and with careful adjustment to its terms.  

To understand the success of the VRA, we must briefly review how it works. The act as a whole forbids certain kinds of manipulation of voting laws to exclude or dilute minority votes.  The "coverage formula" provision in sections 4 designate certain sections of the country, on the basis of history, as being the most flagrant offenders of the Fifteenth Amendment's command that "[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." Under Section 5, those jurisdictions had to get preapproval from the Justice Department or from a federal court before they could change their voting procedures at all. The reason was that previous voting-rights laws had been neutralized when the Deep South jurisdictions invented new ways not covered by the laws of blocking black voters. This time, the state would have to justify its restrictions, rather than forcing the government and citizens to go to court each time a new stratagem appeared.

Each of the first three times the act was reauthorized, Congress changed slightly the Section Four formula for determining "covered jurisdictions." It also included new procedures to allow jurisdictions to get out of preclearance by proving they had cleaned up their act. The most recent reauthorization, in 2006, kept the "coverage formula" the same, but adjusted the law carefully to cover new forms of racial discrimination not apparent in 1965. 

After that change, the vote to approve was almost unanimous in a Republican-led House and entirely unanimous in a Republican-led Senate, and the bill was signed into law with great flourish by a Republican President, who hailed it, correctly, as "an example of our continued commitment to a united America where every person is valued and treated with dignity and respect." It was, by any sane model of self-government, an American success story, of a flexible, successful law, adjusted for changing conditions, achieving a significant national goal.

On Tuesday, at the Court, this entire successful 45-year bipartisan effort was brushed aside as farce. The factual record amassed in 2006 was extensive, the majority concedes; but it is also irrelevant. "Congress did not use the record it compiled to shape a coverage formula grounded in current conditions ... we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today." 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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