Writing in the New York Times, Adam Liptak takes a close look at the way the nation’s smaller states often receive more favorable treatment than do the bigger states that make up our nation.   As Liptak observes, when it comes to federal largesse, small states often receive an outsized share of federal funds, even when compared to neighboring states.  For example, as Liptak notes, since 2009, the federal government has spent $2,500 per person in federal stimulus funds to help build roads, bridges as well as  a community health center in Rutland County, Vermont; on other side of the border, in Washington County, New York, the federal government only spent $600 per person on similar efforts.    In the words of one political scientist, “From highway bills to homeland security, small states make out like bandits.”  This differential treatment has never been thought to raise any constitutional issue.   The Constitution does not contain any provision that requires that all states be treated on the basis of equality.  The Supreme Court has never interpreted the Constitution to require equality among states outside the very narrow context of the admission of new states.  It is black letter law that “the doctrine of equality of states . . .  applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.”  

That is what makes this Term’s Shelby County case so astounding.  As we’ve discussed (here, here, and here), the conservatives on the Supreme Court appear poised to strike down one of the most important provisions of the Voting Rights Act, the preclearance requirement – a provision that the Court has four times upheld as “appropriate legislation” that falls within the Fifteenth Amendment’s express grant of enforcement power to Congress – on the basis that the Voting Rights Act treats some states differently than others, providing special remedies for voting discrimination applicable in certain states with a history and current practice of state-sponsored racial discrimination in voting.  During oral argument, all the conservative Justices (other than Justice Clarence Thomas, who as usual stayed silent) criticized the preclearance requirement because it only applies in certain states, with Justice Kennedy repeatedly suggesting that it was unconstitutional to “single out states” in this manner.  But, as Liptak’s piece highlights, our Constitution does not contain any principle of equality of states that limits Congress’ exercise of its express constitutional powers. 

The big question in Shelby County is whether Court’s conservative Justices are willing to take the radical step of striking down a core provision of the nation’s most iconic civil rights law and second-guessing Congress’ express power to protect the right to vote on the basis of a principle of equality of states that has no demonstrable basis in either constitutional text, history or precedent.   If the Court follows the Constitution – not its own policy preferences – it will uphold the Voting Rights Act as constitutional.