In the next few weeks, the spectacle known as the end of the Supreme Court term will be upon us. And with it, bizarre as it may seem, we will get answers to some of the most important and vexing questions of the day. I eagerly await for one answer in particular: in Namudno v. Holder, the Court will decide whether the special provisions of the Voting Rights Act remain a legitimate exercise of congressional power under the Fifteenth Amendment.
The puzzle began in 1965, when the Johnson administration devised a coverage formula that engulfed predetermined states within the special provisions of the Act. The formula itself seemed innocuous enough: the offending jurisdiction must use a literacy test as part of its voter registration process, and either its turnout rate for the 1964 presidential election or its registration rate on November 1, 1964 was below fifty percent. Once applied, the formula brought within the purview of the Act the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, as well as 26 counties in North Carolina.
To a cynic – and there were a few in Congress back then – the fact that these select jurisdictions came under the Act’s coverage must mean that the formula was nothing but an arbitrary ruse designed to penalize select southern jurisdictions. To the Supreme Court, however, the fact that these states were the worst known offenders corroborated the rationality of the formula.
The formula has remained essentially in place for 44 years. This is curious at best. How could this formula, intended as a temporary measure, remain unchanged for 44 years? The way that supporters of the Act defended the special provisions of the Act focused on their temporary nature; or as Representative Don Edwards, the House subcommittee chairman in 1975, “[t]he act that was the result of this frustration was a radical bill. It was bent on results without delay. It was also designed to be temporary. After a few years of harsh measures, the practices of a lifetime would be reversed and special Federal protection would no longer be necessary.” Are we to assume that none of the covered jurisdictions have improved in any noticeable way, and that voting problems have not surfaced elsewhere?
Maybe. But at the heart of the Namudno case is the question of institutional competence. Whether matters have improved or not, and whether the special provisions of the Act are no longer required, are questions for Congress to consider. These are questions of degree. These are also questions on which the Court has deferred to the will of Congress on four separate occasions, the last in 1999 and the Monterey County case. For the Court to now conclude that any existing problems no longer demand a congressional response of this magnitude would be for the Court to disagree with Congress on a question that, until today, was a question reserved for Congress. It would be for the Court to turn its back on precedents dating back four decades. If this is not judicial activism, I don’t know what is.
Make no mistake, the Court has been here before. The year was 1980, and the case was City of Rome. The civil rights movement had long disappeared from view, and the Nixon appointees finally had the votes and appeared poised to strike down the Act. The pieces were in place. Chief Justice Burger and Justice Blackmun had reserved judgment to this point, but in earlier concurrences had made clear that they were not friends of the VRA. The facts were also gift-wrapped: How could the Court justify the congressional enforcement of a discriminatory effect standard if the Fifteenth Amendment only protected against intentional racial discrimination (as the Court concluded the same day it issued the Rome opinion, in City of Mobile)?
The line-up was set: Justices Powell, Rehnquist and Stewart, to be joined by Chief Justice Burger and Justice Blackmun (and who knew, maybe even the newest Court member, Justice Stevens might come along).
But in the end, Burger and Blackmun could not do it. They signed on to Justice Marshall’s opinion upholding the VRA and did not offer their views on the matter.
So maybe, just maybe, Justice Kennedy will not be able to do it either. And that is just bizarre, even incomprehensible – the central policy questions of our time decided by the Court on a 5-4 vote, and a swing Justice holds all the cards.
It might be time to abolish judicial review after all . . .