Wednesday, June 17, 2009

Open Letter to Justice Kennedy (and all other "Classical Judicial Jurists")

Dear Sir(s) --

I noticed that the NAMUDNO opinion is not out yet. I assume this means that it is taking up a lot of your time. This appears to be a hard case. But it is not really all that hard. Let me help you.

These are your words, from the recent Bartlett case (decided in March of this year): "Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions." I agree. And so did Congress in 2006, by overwhelmingly extending the special provisions of the Voting Rights Act for another 25 years.

As you prepare to decide NAMUDNO, and whether these special provisions are legitimate exercises of congressional power under the Reconstruction Amendments, don't let it be said that you are not a classical judicial jurist, a judge for whom precedent matters. This is why you must uphold the VRA once again. You and Congress agree that a problem still exists, and Congress extended the VRA in an attempt to continue the fight against this very problem. The only way you could strike down this statute would be by disagreeing with Congress on the means deployed to combat this problem. But surely, to do so would be to disagree with precedents dating back to the founding, and as recent as a decade ago. So long as the ends pursued by the legislation are legitimate, the means need only be appropriate and "plainly adapted to that end." The only way you could strike down the statute, in other words, would be by disagreeing about the means deployed by Congress. In doing so, you would also disagree with rulings issued by all three preceding Courts. Don't let it be said that you are an activist judge.

I recognize that the various extensions to this law are now beginning to turn these provisions into a seemingly permanent statute. But this argument is nothing short of a distraction. As Attorney General Katzenbach told Congress in 1965, this statute is "strong medicine." Nobody takes medicine forever, of course. But it should be for Congress to determine when the need for the medicine ends, not the Court. And Congress just determined that the need still exists, for another 25 years. In Bartlett, you agreed that the ills that motivated Congress to act are still among us. And so to strike down these special provisions would be to impose your personal views and decide that these means, these provisions, are not necessary, or too strong, or who knows what. But that would not be an act of a court. That would be an act of a legislature.

As we prepare for the historic confirmation hearings on the nomination of Judge Sotomayor, we will hear and debate many views about what the proper temperament and disposition of a Supreme Court Justice should be. In this vein, this case should give us a window into the Roberts Court and the future of voting rights law. It should also help us put these upcoming debates in perspective.

Remember: this is not a hard case. Assuming, of course, that you are a "classical judicial jurist." Tell your friends.



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