Last month, in Shelby County v. Holder, the United States Supreme Court by a 5-4 vote voided the "coverage formula" of Section 4 of the Voting Rights Act, upending Congressional authority to root out voter suppression under the 15th Amendment. To give you a sense of how radical the majority opinion was, I give you the recent words of a long-ago Republican appointee to the Court, a man who served 12,611 days as a justice, a man who presided over three of the four Congressional "re-authorizations" of the federal law.
I give you, in other words, the retired John Paul Stevens, the lone Supreme Court appointee of President Gerald Ford, the third-longest serving justice in Court history, writing in The New York Review of Books under a headline titled "The Court & the Right to Vote: A Dissent." To the surprise of many, Stevens has offered a sharply critical evaluation of Chief Justice John Roberts' majority opinion in Shelby County -- a rebuke that strikes like a thunderclap over a nation still coming to terms with what the Court's five conservatives have done to the Voting Rights Act and what it means for minority citizens.
What gives Stevens the right to criticize his former chief in such a fashion? Plenty. Justice Stevens earned his conservative bona fides on voting rights long before he authored the Court's 2008 majority opinion in Crawford v. Marion County, a case that sanctioned the current generation of (largely suppressive) state "voter identification" laws. In Crawford, Justice Stevens stood with those who sought to make it harder, not easier, for people to vote. A state did not have to prove voter fraud, Justice Stevens wrote in Crawford, to justify using the threat of voter fraud to impose burdens upon registered voters.
That is why his complaints about Shelby County carry such weight. In his NYRB essay, which every member of Congress ought to read before saying anything more about the future of the federal statute, Justice Stevens first takes issue with the argument offered by the Chief Justice that Section 4 (and Section 5) of the Voting Rights Act merited heightened judiciary scrutiny because those provisions treat different states differently. Stevens writes:
The Court's heavy reliance on the importance of a "fundamental principle of equal sovereignty among the States," while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. That clause counted "three fifths" of a state's slaves for the purpose of measuring the size of its congressional delegation and its representation in the Electoral College.
That provision was offensive because it treated African-Americans as though each of them was equal to only three fifths of a white person, but it was even more offensive because it increased the power of the southern states by counting three fifths of their slaves even though those slaves were not allowed to vote. The northern states would have been politically better off if the slave population had been simply omitted from the number used to measure the voting power of the slave states....
Both the underrepresentation of blacks and the overrepresentation of white supremacists in the South during that period contradict the notion that the "fundamental principle of equal sovereignty among the States" is a part of our unwritten Constitution. As Justice Ginsburg pointed out in her largely unanswered dissent in the Shelby County case, the Court in its opinion upholding the original 1965 Voting Rights Act:held, in no uncertain terms, that the principle [of equal sovereignty] "applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared."
Next, Stevens takes issue with the historical context in which the Chief Justice framed his argument. Voter suppression by whites of would-be black voters didn't begin in the 1890s, Stevens reminds us. It began decades earlier when Reconstruction ended. Yet the Court did not make that clear in Shelby County. Stevens writes: "Except for his reference to the fact that the first century of congressional enforcement of the Fifteenth Amendment's guarantee of the right to vote 'can only be regarded as a failure,' Chief Justice Roberts's opinion gives the reader the impression that the Voting Rights Act was Congress's response to a specific problem that developed in the 1890s."
Then comes the passage in Stevens's essay that naturally got the most publicity following its publication. In it, Stevens is not just attacking the majority's judgment in Shelby County but the fact that the Court's conservatives were willing to judge at all. What follows is a direct accusation against the Roberts Court that, in Shelby County, it engaged in a form of so-called "judicial activism" that conservatives typically decry. What Stevens is saying here is that the Chief Justice and his four colleagues inappropriately inserted themselves between the 15th Amendment and Congress when it comes to voting rights. He writes:
The statistics set forth in Roberts's recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War--or more precisely continuing to use the formula that in 1965 identified those states--is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court.
The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.
The several congressional decisions to preserve the preclearance requirement--including its 2006 decision--were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.
Finally, Stevens steps back from the four corners of the Shelby County decision and bravely identifies the hypocrisy of it all. He does so by citing the very same paragraph from Justice Antonin Scalia's dissent in the Defense of Marriage Act case, United States v. Windsor, that I focused upon here at The Atlantic the week it was issued. What I said then, and what Stevens is saying now, is that the Court's conservatives did in the Voting Rights Act case precisely what they decried was being done to them in the federal same-sex marriage case. As Stevens suggests, the result isn't just bad law: It gravely undercuts the Court's eternal concerns about appearing impartial. Here's how Stevens ends his memorable essay:
A further unusual feature of the Court's decision merits a final comment. Instead of holding that it was unconstitutional to apply the preclearance requirement to Shelby County, the Court merely held that it was unconstitutional to use the formula in the 1965 Act to identify those jurisdictions that must have their proposed voting changes precleared. Presumably that narrower holding was intended to avoid the rule of judicial restraint that normally, in a so-called facial challenge, required the plaintiffs challenging the constitutionality of a federal statute to convince the Court that the statute is invalid under all circumstances. Thus, the Court sidestepped the problem that Alabama's past history would adequately support a continuing application of preclearance procedures to Shelby County by focusing only on the formula used to subject Shelby County to this requirement.
That unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice's opinion. It struck me as even more questionable when I read Justice Scalia's dissent in the Defense of Marriage Act case, which was decided the next day. In his dissent, Justice Scalia contended that the Court erred in its antecedent decision that it had jurisdiction to reach the merits of the constitutional challenge to DOMA. The "diseased root" that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case. He wrote:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.