The Insolence of Office

So, yesterday's oral argument in Shelby Co. v. Holder, challenging the constitutionality of section 5 the Voting Rights Act, is pretty depressing reading. Not merely because of the fact that a rump majority seems poised to strike down the statute, but because the paucity of the reasoning on which they seem prepared to do so is such as to undermine the credibility of judicial review.

What do I mean by this? It's quite simple, really; the Court seems poised to strike a major civil rights statute on the theory that a bare majority of its members disagree with the policy it embodies and the constitutional amendment pursuant to which it was enacted. The Fifteenth Amendment provides:

AMENDMENT XV
Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.
The 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--

Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.

At the time the Voting Rights Act of 1965 was enacted, the Congress confronted a near-century in which the Fifteenth Amendment was simply, openly, defied by the covered jurisdictions. As the Supreme Court summarized in upholding the VRA's constitutionality in South Carolina v. Katzenbach:

The Fifteenth Amendment to the Constitution was ratified in 1870. Promptly thereafter, Congress passed the Enforcement Act of 1870, [n6] which made it a crime for public officers and private persons to obstruct exercise of the right to vote. The statute was amended in the following year to provide for detailed federal supervision of the electoral process, from registration to the certification of returns. As the years passed and fervor for racial equality waned, enforcement of the laws became spotty and ineffective, and most of their provisions were repealed in 1894. The remnants have had little significance in the recently renewed battle against voting discrimination.

Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that, as of 1890, in each of the named States, more than two-thirds of the adult Negroes were illiterate, while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, "good character" tests, and the requirement that registrants "understand" or "interpret" certain matter.

The course of subsequent Fifteenth Amendment litigation in this Court demonstrates the variety and persistence of these and similar institutions designed to deprive Negroes of the right to vote. Grandfather clauses were invalidated in Guinn v. United States, 238 U.S. 347, and Myers v. Anderson, 238 U.S. 368. Procedural hurdles were struck down in Lane v. Wilson, 307 U.S. 268. The white primary was outlawed in Smith v. Allwright, 321 U.S. 649, and Terry v. Adams, 345 U.S. 461. Improper challenges were nullified in United States v. Thomas, 362 U.S. 58. Racial gerrymandering was forbidden by Gomillion v. Lightfoot, 364 U.S. 339. Finally, discriminatory application of voting tests was condemned in Schnell v. Davis, 336 U.S. 933; Alabama v. United States, 371 U.S. 37, and Louisiana v. United States, 380 U.S. 145.

According to the evidence in recent Justice Department voting suits, the latter stratagem is now the principal method used to bar Negroes from the polls. Discriminatory administration of voting qualifications has been found in all eight Alabama cases, in all nine Louisiana cases, and in all nine Mississippi cases which have gone to final judgment. Moreover, in almost all of these cases, the courts have held that the discrimination was pursuant to a widespread "pattern or practice." White applicants for registration have often been excused altogether from the literacy and understanding tests, or have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers. [n12] Negroes, on the other hand, have typically been required to pass difficult versions of all the tests, without any outside assistance and without the slightest error. The good-morals requirement is so vague and subjective that it has constituted an open invitation to abuse at the hands of voting officials. Negroes obliged to obtain vouchers from registered voters have found it virtually impossible to comply in areas where almost no Negroes are on the rolls.

All of Congress's previous efforts to remedy this obstructionism, however, failed due to massive resistance from the covered jurisdictions.

The evidence is quite strong that by any reasonable interpretation, the Fifteenth Amendment was intended by its Framers, understood as, and in fact by its text does create in Congress a "strong, sweeping power to stamp out every conceivable attempt by the states to deny the franchise on account of race."

Meanwhile, in City of Boerne v. Flores (1997), as part of its judicial creation of federalism guarantees in favor of states' rights, even against explicit constitutional provisions, arrogated to itself the power to judge the "proportionality and congruence" of statutes enacted under the similar power granted Congress under the Fourteenth Amendment.

So the hostility displayed by the conservative members of the Court toward the VRA presents the curious spectacle of professed textualists privileging their own notions of federalism over the explicit grant of power to Congress in the text; originalists blithely assuming that preservation of the autonomy of the states in its pre-Civil War glory was the goal of the Reconstruction Congress, and all while professing to be neutral solons of the law while deriding, in Justice Scalia's case at least, the very notion of Congress protecting the rights of minority Americans to vote under a constitutional provision that explicitly empowers it to do just that. Really, it almost makes me wish I'd picked another line of work.