New Report on Constitutional Text and History and the Supreme Court’s Upcoming Voting Rights Act Ruling Set the Stage for Judge Sotomayor’s Confirmation Hearing

by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Sometime in the next few weeks, the Supreme Court will issue what may well turn out to be the blockbuster ruling of this term — its decision in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO). The plaintiff in this case, a small municipal utility district in Texas, is challenging the constitutionality of a critical provision of an iconic civil rights statute — the Voting Rights Act of 1965, most recently re-authorized by Congress in 2006 (with a Senate vote of 98-0). Questions posed by the Court’s conservatives during oral argument indicate that they are poised to agree with the plaintiff and strike down the challenged portion of the Act.

Today, Constitutional Accountability Center (CAC) released the second report in our Text and History Narrative Series, a report that could not be more relevant or timely, as it tells what is essentially the constitutional “back story” of the NAMUDNO case, and demonstrates that a ruling striking down a central portion of the Voting Rights Act would be an egregious departure from constitutional text and history. This is a story that progressives need to understand, not only to respond forcefully to such a ruling and help shine a light on the conservative activism of the Roberts Court, but also to help frame the upcoming hearings on Judge Sonia Sotomayor’s nomination to the Court. A ruling that guts a core part of the Voting Rights Act would illustrate that the Court’s conservatives are not willing to take the text and history of the Constitution seriously, and the need for Justices who will.

In NAMUDNO, the proper decision on the constitutional challenge to the Voting Rights Act will turn on the correct reading of the Enforcement Clauses of the Civil War Amendments — the 13th, 14th, and 15th Amendments — an area in which the Court has already gone far astray. With the ruling in NAMUDNO, the Court could make one of its biggest and most harmful constitutional errors in history.

CAC’s new report, The Shield of National Protection, reveals how drastically a ruling striking down part of the Voting Rights Act would depart from the text and history of the Constitution. As The Shield demonstrates through a careful study of the text and history of the Civil War Amendments, the Reconstruction Framers intended the Enforcement Clauses to provide Congress with broad authority to guarantee, “by appropriate legislation,” the fundamental rights secured by those Amendments, including the right to vote. Written against the backdrop of Dred Scott v. Sandford, the Supreme Court ruling that helped bring on the Civil War, these Amendments were ratified to change the balance of power between the States and the federal government and provide Congress with the tools to protect fundamental rights.

Unfortunately, as discussed in The Shield, the sweeping enforcement power given to Congress has too often been ignored by judges more concerned with results than with upholding the Constitution. The modern Supreme Court has been the worst offender, re-affirming earlier erroneous rulings and creating, out of thin air, new restrictions on the exercise of federal authority under the Civil War Amendments. As we await the Court’s ruling on the Voting Rights Act, there is reason to fear that the Roberts Court will further restrict congressional power in an area at the heart of the rights and freedoms the Civil War Amendments were intended to protect.

During oral argument in NAMUDNO, the Court’s conservatives displayed marked hostility to the Voting Rights Act and seemed ready to invalidate the challenged portion of the Act, the Enforcement Clauses be damned. Such a ruling would be among the most stunning departures from constitutional first principles. According to Yale Law Professor Akhil Amar: “The American people ratified the Civil War Amendments with full understanding of the breadth of their language authorizing ‘appropriate’ federal legislation and knowing that Congress believed this language authorized transformative new federal statutes to secure the franchise and uproot all vestiges of inequality. A ruling by the Supreme Court striking down a critical part of the Voting Rights Act would represent a shocking and disturbing departure from this text and history.”

Indeed, such a ruling would illustrate the lie in everything conservative judges have been telling us about their approach to judging. It would fly in the face of constitutional text and history, when conservative judges purport to be bound by these sources. It would be starkly activist when they purport to favor judicial restraint. The disparity between these touted conservative principles and a ruling in NAMUDNO eviscerating a core provision of the Voting Rights Act would be so enormous that it could fundamentally alter the debate over the Supreme Court in this country, waking progressives up to the genuine threat posed by the Roberts Court and alerting Americans that conservative judges cannot be trusted to honor the Constitution’s text and history, even when our most fundamental rights are at stake.

If the Court does in fact issue such a ruling, progressives can and should use it as an opportunity to help jump start a national conversation about the role and future of the Supreme Court. The judiciary is not usually at the forefront of most Americans’ concerns. However, with Judge Sotomayor’s confirmation hearing soon upon us, Americans may just be ready to have this important conversation.

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CAC’s new report, The Shield of National Protection: The Text and History of Section 5 of the Fourteenth Amendment, can be found here.