Federal Courts and Nominations

Narrowly Avoiding a Constitutional Revolution

Dahlia, you ask how we should respond to Justice Thomas’ declaration that finding Section 5 “no longer constitutionally justified” should be seen not as a “sign of defeat” but rather an “acknowledgment of victory.” Superficially, that’s very catchy. There are only two problems with it—the facts and the law. On the facts, there is plenty of evidence that American society has not yet entered a post-racial political nirvana. (See my earlier reference to Nathaniel Persily’s brief in this case.) On the law, the point that’s completely obfuscated in today’s opinions is that the Supreme Court is not writing on a blank slate. Rather, it is reviewing action taken by a contemporary Congress in the exercise of its powers under the 14th and 15th amendments to protect citizens’ rights to equal protection of the law as well as the right to vote. This is a core legislative function granted to Congress by the Reconstruction Amendments. The City of Boerne line of cases, which Justice Thomas adopts explicitly and Chief Justice Roberts embraces implicitly, has never been applied to limit congressional authority to protect interests deemed worthy of strict scrutiny. I realize that’s a pretty dense sentence—let me unpack it, because I think it’s crucial to understanding what’s going on here and what the stakes really are.

Section 5 of the 14th Amendment gives Congress the authority to enforce, by “appropriate legislation,” the rights to due process and equal protection that the amendment itself guarantees. Twelve years ago, in City of Boerne v. Flores, the Rehnquist court carved a chunk out of Congress’ enforcement power, declaring that action taken by Congress under Section 5 was constitutional only if it was a “congruent and proportional” remedy for a demonstrated constitutional violation. Using this brand-new formulation, the court went on to strike down portions or particular applications of the Religious Freedom Restoration Act, the Violence Against Women Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act. In today’s case, all the discussion about how there is supposedly no longer a voting rights problem supports the argument that the conceded intrusion on federalism imposed by the preclearance requirement is no longer—if it ever was—a congruent and proportional remedy for a constitutional violation that has faded into history.

This skeptical standard of review is in sharp contrast to the deference the court showed to Congress in South Carolina v. Katzenbach, the 1966 case that upheld the Voting Rights Act and basically said that however Congress chooses to deploy its Section 5 enforcement, power will be upheld as long as the congressional choice is “rational.” So the complicated underlying doctrinal question in today’s case was whether the Supreme Court would import the City of Boerne standard, with all its overtones of judicial triumphalism, into the arena of race or decide that, given the 14th Amendment’s exclusive concern with race, that this was a boundary across which it would not allow the City of Boerne standard to creep.

Under the Clarence Thomas concurrence and dissent, the answer is clear that the court owes Congress only minimal deference, a la City of Boerne. Under the Roberts opinion, the answer would almost certainly have been the same—if the chief could have rounded up five solid votes. This would truly have been a constitutional revolution, with a significance outstripping the fate of Section 5 of the Voting Rights Act. For a rich discussion of this issue, see a background paper recently issued by the Constitutional Accountability Center: “The Shield of National Protection.”

Dahlia and Walter, I’d like to ask you whether you think the chief justice’s opinion is an exercise in judicial minimalism and, if so, whether that’s a good thing.

Until later,

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