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
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.