The Perils of Shelby

Back in the early 1980s, a young John Roberts, working in the Reagan Administration, unsuccessfully battled to narrow the Voting Rights Act. Today he succeeded in gutting a section of the VRA that was instrumental in thwarting voter suppression in the 2012 elections.

It is very difficult to overstate the enormity of today's decision in Shelby County v. Holder, as the Court both deforms the substance of constitutional law and the methodology of judicial review. In it, the Supreme Court struck down Section 4 of the Voting Rights Act, a statute most recently reauthorized in 2006, and enthusiastically signed by former President George W. Bush. The Voting Rights Act is an exercise of Congress's power under the Fifteenth Amendment, which provides that "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." The Amendment further provides that "The Congress shall have power to enforce this article by appropriate legislation."

Note that. The Congress, not the Court, nor the Executive, is constitutionally afforded remedial power. The fashioning of the remedy and the judgment of the need for a remedy is entrusted to the popularly elected branch. Similar constitutional provisions entrusting the passage of "appropriate" legislation to Congress, such as the Necessary and Proper Clause (which imposes a second qualification on the exercise of the power, that it be "necessary"), have been entitled to deferential review by the Court. Even in National Federation of Independent Businesses v. Sebelius (2012),in which the Court narrowed the New Deal understanding of the Commerce Clause, the Court acknowledged that:

The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch, 4 Wheat., at 421.[1819]

However, the Court was not so deferential in reading "appropriate" under the Fifteenth Amendment today:

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections.
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Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580

The trick move here is to assume that the Fifteenth Amendment--a post-Civil War Amendment--does not effect or limit the Tenth Amendment, and that the two must be harmonized by a less deferential level of judicial review of legislation enacted under the Fifteenth Amendment. Chief Justice Roberts purports, through selective quotation, to derive this analysis from South Carolina v. Katzenbach (1966), which first upheld the exact same section of the Voting Rights Act struck down today, but in fact, that decision found that:

The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

McCulloch v. Maryland, 4 Wheat. 316, 421. The Court has subsequently echoed his language in describing each of the Civil War Amendments:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

So, in fact, the suggestion on the part of the majority today that Section 4 of the Voting Rights Act "represents an extraordinary departure from the traditional course of relations between the States and the Federal Government,” and constitutes “extraordinary legislation otherwise unfamiliar to our federal system," and thus requires a heightened showing by Congress to justify it is a novelty; although its quotations are from other decisions, they did not create a new heightened threshold that Congress must establish. Indeed, in a system where the remedial power is expressly entrusted to the legislature not the courts or the Executive, such a heightened showing would subvert not just the extensive precedent from the enactment of the Amendment to the present, especially that from 1966 to today, it would subvert the respect Congress is owed as a coordinate branch.

So of course they did just that.

After diluting the deference due Congress, the Court than cites two factors leading it to conclude that the provisions of § 4 are no longer 'appropriate":

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84Stat. 315; §102, 89Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity.

As to the evidence of continuing abuses complied by Congress, the Court merely writes:

Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting).
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The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.

In other words, (1) if the evidence is, to the Court, ambiguous, federalism must prevail, despite the express terms of the Fifteenth Amendment; and (2) the data cannot justify retaining the previous statutory formula, because it was not used in creating the formula. Why not, if, as the dissent shows at stinging length, it does--um. because. Yes, that's why. because.

As to the Court's contention (excerpted from the last quote) that "no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time," Justice Ginsberg compiles substantial data to the contrary, by the quaint old art of reading the record, and notes that the fact that the discrimination changes its form to seem neutral and hopefully pass constitutional muster, as the Court in Katzenbach found to be the case in 1966.

In 2013, though, that's a feature, not a bug.

All I can add is read the dissent by Justice Ginsburg. It's worth your time.