The Voting Rights Act, the Souter Vacancy, and the Future of the Supreme Court

by David H. Gans, Director of the Civil Rights, Human Rights, and Citizenship Program, Constitutional Accountability Center

The Supreme Court’s Term ends every June with a bang. Last summer’s blockbuster was District of Columbia v. Heller, where the Court found, 220 years after ratification, that the Second Amendment protected an individual’s right to bear arms. Heller was widely viewed as a triumph for Justice Scalia and originalism, both because Scalia’s lengthy majority opinion was rooted in the text and history of the Second Amendment and because the equally lengthy dissent by Justice Stevens studied the same materials and disagreed only about whether text and history protected a right unconnected with service in the militia. Every justice on the Court was an originalist, at least for that one day.

What a difference a year makes. This Term’s blockbuster is most likely to be NAMUDNO v. Holder, and it is shaping up to be a repudiation of the Constitution’s text and history, and the originalist method that the Heller Court employed. With a decision expected in the midst of the search for a replacement for Justice David Souter, the Supreme Court’s decision in NAMUDNO, and its take on the Constitution’s text and history, will form the backdrop for both Obama’s nomination of a new Justice, and the hearings and debates on Obama’s nominee.

The issue in NAMUDNO is the constitutionality of one of the most important and successful provisions of the Voting Rights Act, the pre-clearance provision, most recently renewed by Congress in 2006. Upheld by the Supreme Court in 1965 and 1980, the pre-clearance provision requires certain covered jurisdictions, mostly in the South, to obtain federal permission before altering their voting laws and procedures.

Judged by the Constitution’s text and history, NAMUDNO should be an easy case. The Civil War Amendments—the Thirteenth Amendment’s prohibition of slavery, the Fourteenth Amendment’s protection of equality and liberty, and the Fifteenth Amendment’s guarantee of the right to vote—each grant to Congress the power to enforce their guarantees by “appropriate legislation.” Written against the backdrop of Dred Scott v. Sandford, the Supreme Court’s 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 effectively, including the right to vote free from racial discrimination. The framers who wrote these Amendments and the American people who ratified them did not trust the states to protect fundamental rights and were more than a little suspicious of the Supreme Court, which had, after all, just announced that African Americans “had no rights which the white man is bound to respect.”

Given the text and history, whether or not Congress could have made slightly different policy choices in 2006—extending the pre-clearance provision for a shorter amount of time or applying it to fewer jurisdictions, for example—is not the question. The proper inquiry is whether Congress’ decision to extend the Voting Rights Act is within the broad discretion that the Civil War Amendments expressly gave to it.

Unfortunately, the Constitution’s text and history – so central to the conservative Heller majority – was decidedly missing in action during the recent oral argument in NAMUDNO. Rather than recognize that the Civil War Amendments give Congress a central role in enforcing liberty and equality and that congressional enactments designed to protect fundamental rights deserve substantial deference, the Court’s conservative Justices displayed marked hostility to the Voting Rights Act, refusing to give weight to Congress’ conclusion that the preclearance requirement is still necessary to deter and prevent racial discrimination in voting. Heller’s insistence that the Court follow the commands of the text and original meaning of the Constitution went unheeded. Throughout the argument, these Justices flatly ignored the text and history of the Fourteenth and Fifteenth Amendments, acting as if the Court’s role was to decide whether Congress was right to renew the Voting Rights Act’s ban on racial discrimination in voting, rather than to decide whether Congress’ legislative solution was within its broad discretion to enact “appropriate” enforcement legislation.

Given the repeated hostile questioning by all the Court’s conservatives – except Justice Thomas who was characteristically silent – many commentators expect that the Court will strike down the extension of the pre-clearance requirement. That result would be deeply troubling, just one year after Heller’s insistence about the need for fidelity to the Constitution’s text and history. Judging from the NAMUDNO oral argument, there is a real question whether the Court’s conservatives are willing to respect the Constitution’s text and history when they lead to progressive outcomes. We’ll know for certain by the end of next month.

But the conservatives weren’t the only one who oddly silent about this progressive text and history. Even after rising to the challenge in dissent in Heller, the Court’s progressive justices seemed content in NAMUDNO to debate the quantum of evidence before Congress, rather than asserting that the Court was overstepping its constitutional role.

This deafening silence should help inform President Obama’s process of selecting a nominee to replace Justice Souter, who announced his retirement days after oral argument in NAMUDNO. Obama should look for a successor to Justice Souter who can go toe-to-toe with the Court’s conservatives and call them out for refusing to follow the Constitution’s text and history when they point in progressive directions. The NAMUDNO oral argument underscored that the Supreme Court badly needs Justices who will take the Constitution’s text and history seriously, and consistently show to all Americans that the Constitution is a progressive document that supports protection of substantive fundamental rights, ensures equal treatment of all Americans, and gives the federal government broad power to enforce the Constitution’s protections. Hopefully, with the right nominee, Obama can get the Supreme Court back on the right track.

Cross-posted at Balkinization.

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