Summary

Do decisions that return the country to a pre-Civil War understanding of the nation establish a more perfect Union? Are decisions just that shield not only the states but lesser appendages of the state from paying for the wrongs they commit? Do decisions that leave the elderly and the disabled with inadequate remedies for unequal treatment establish justice? . . . .Do decisions that deny Congress the power to protect the free exercise of religion secure the blessings of liberty? Do decisions that leave women less protected than men achieve any of the Constitution’s ends?

The[se] results . . . were reached largely . . . by means of doctrinal devices – state sovereign immunity, congruence and proportionality of legislation, and record of evils to be eradicated – that have no footing in the Constitution. Remove these obfuscations, it will be clear that the court’s decisions do not survive the test for serving constitutional purposes.

~ John T. Noonan, Jr., Narrowing the Nation’s Power: The Supreme Court Sides with the States

Three years ago, an ideologically-divided Supreme Court appeared poised on the precipice of a ruling that would strike down a central provision of an iconic civil rights law – the preclearance provision of the Voting Rights Act of 1965 – as beyond Congress’s constitutional authority. Then, the Court blinked, issuing instead an 8-1 ruling disposing of the challenge on narrow statutory grounds.

Now with limits on state-imposed threats to voting rights front and center in the run-up to the fall 2012 elections, challenges to the Act are again racing through the court system, setting up a return engagement before the Court, possibly as soon as the October 2012 Term.

As the quote above from Judge John Noonan, a conservative appeals court judge appointed by President Ronald Reagan, makes clear, one of the most important and controversial developments in the Supreme Court’s jurisprudence of the last 15 years is a new doctrine, minted by Justice Anthony Kennedy in the 1997 ruling in Boerne v. City of Flores, limiting the power of Congress to protect the constitutional guarantees of liberty and equality secured by the Fourteenth Amendment.

Introduced with little notice or fanfare in Boerne – a case that divided the Court mainly over the meaning of the First Amendment’s Free Exercise Clause – Boerne’s “congruence and proportionality” test has subsequently become a lightening rod, as Justice Kennedy and other conservative Justices on the Court have applied this test with significant rigor in rulings that have narrowed the reach of landmark federal civil rights laws such as the American with Disabilities Act and the Age Discrimination in Employment Act.

With a test to an important section of the Family and Medical Leave Act before the Court currently, and with a landmark challenge to the Voting Rights Act on its way to the Court, the constitutional authority of Congress to protect liberty, equality and civil rights is very much at a crossroads.