Tuesday, June 23, 2009

The Liberals in NAMUDNO (cont.)

The post-mortem on the constitutionality of the Voting Rights Act is in full-swing. As it is often the case, commentators are all over the map trying to make sense of what the Court said and did not say in NAMUDNO. One reading of the opinion is particularly intriguing, as encapsulated by Guy's thoughts on the case. Namely, it is turning into a truism that the Chief Justice carried the day and the liberals on the Court gave away the store. Commentators question whether the liberals ceded too much ground in trying to preserve the constitutional showdown for another day.

I really don't see it.

Lets take up the arguments (or "dark signs") one at a time:

(1) First, on the facts --
  • the conditions that justified section 5 in the past "have changed"
  • "blatant discriminatory evasions of federal decrees are rare,"
  • "past success alone . . . is not adequate justification to retain the preclearance requirements," and
  • "the Act imposes current burdens and must be justified by current needs."
I fail to see how these statements amount to much of anything. Of course the conditions have changed, and you would have to be blind not to see it. If you need any help on this point, go read David Garrow or Taylor Branch. This is not what the case was about now, not today and not thirty years ago in City of Rome. The Act as enacted addressed present conditions, and from that time forward the argument has been whether improved conditions warrant further extensions. To suggest that things have improved is only to state the obvious point that the Act is not an irrational scheme aimed at nothing in particular.

(2) Second, on the states and the rationality of the coverage formula --
  • the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."
  • The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions.
Again, go read the committee debates in 1965 and you will find these arguments sprinkled throughout. This is not new. And then go re-read City of Rome and you will find similar arguments as well. The question for the Court from the beginning has been about how it chooses to weigh the evidence put together by Congress. And from the beginning, critics have offered the Court the argument that distinctions between covered and non-covered jurisdictions are spurious and unsupportable.

For example, critics and supporters alike complained during the hearings about the exclusion of Texas from coverage. Texas, of course, is the setting for the white primary cases and White v. Regester. Could a formula that fails to include Texas be non-arbitrary? Yes, according to 8 justices in Katzenbach. What's new?

(3) Third, the federalism point --
  • The Act imposes "substantial federalism costs"
  • These special provisions of the Act "raise serious constitutional questions under either test."
I don't even know what to say to this. Duh? Of course these are serious federalism costs. Could anybody seriously suggest otherwise? And of course these are serious constitutional questions. Anybody who suggests otherwise must be living on a different planet. But to say that these are difficult questions is not to say that the questions are insupperable. I don't know what else they tell us.

In essence, nothing has changed. In 1980, the Burger and Blackmun (and Stevens, I suppose) held the fate of the Act in their hands. In 1999, the distinction passed to Justice O'Connor. It is now up to Justice Kennedy. And nothing that the liberal justices agreed to, and nothing the Chief Justice wrote or didn't write, is likely to have any bearing on that future vote.

I still cannot help but wonder: if Kennedy was ready to strike the special provisions of the Act, why not get it over with?

1 comment:

  1. I would say this; if Kennedy wasn't ready to strike down Section 5, why would the liberals bother signing on to such an opinion? Why couldn't he write for them in a 5-4 decision affirming the Act's constitutionality? There are surely at least 4 votes for that position, and you'd think that if Kennedy was a fifth they'd be very interested in announcing that the Act is, in fact, constitutional. What I think happened here is that Kennedy and even Roberts are loath to overturn the Act before giving Congress a chance at fixing what they see as its constitutional infirmities; by setting them out in their opinion, they hope that Congress will direct their attention to those areas of the statute before someone else challenges it. If Congress doesn't act, the damage to the Court's popularity or legitimacy that would be done by striking down a piece of such a beloved piece of legislation would be cushioned a bit by the fact that they were told what they needed to do and did nothing.