Are We Witnessing the Beginning of the End for the Voting Rights Act?

 From the time the landmark Voting Rights Act of 1965 became law in 1965, critics have challenged it on constitutional grounds.  Critics complained then that the Act was beyond the powers of Congress, an illegitimate affront to states’ rights and principles of federalism, as well as arbitrary in its coverage.  Months after its passage, the Supreme Court upheld the constitutionality Act; only Justice Black accepted these arguments as applied to the application of the Act to the southern states. 

Through the years, the dissents have grown louder and stronger.  In the Namudno case, decided last June, the Supreme Court made clear that the Act is on borrowed time.  During oral arguments, the conservative wing of the Court voiced its reservations about the constitutionality of the law; and writing for himself and seven other justices, Chief Justice Roberts could hardly hide his contempt for the Act.  When the Court decided the case on statutory grounds, it was only postponing the inevitable.

The question at the heart of the constitutionality of the VRA is easily stated: Is this a world where racial discrimination continues to exist, or have we reached a state of affairs where the Act is no longer a justified intrusion into state affairs?  Too often, discrimination is in the eye of the beholder.  We know how Congress decided this question, when it extended the special provisions of the Act in 2006 for the next 25 years.  In fact, a big part of the hearings were spent focused on this particular question.  The signals from the Court suggest that its conservative wing is not similarly persuaded.

The upcoming challenge to the constitutionality of the Voting Rights Act will not be decided by law as commonly understood, but by the justices’s own visions of the world.  To be clear, this is not a development new to the Roberts Court.  From the moment the justices first upheld the constitutionality of the Act in the Katzenbach cases, the question has been one of judicial will and the justices’ willingness to defer to the findings of Congress about the existence of racial discrimination in American society. This has been true through the years and remains so to this day.  In case after case, from Georgia v. United States to City of Rome to Monterey County, the Court has deferred to the findings of Congress on this complex question.  Whether the Court continues this pattern of deference is the question for the future.  We know where Justice Stevens stood on this question.  It is hard to conclude with any degree of confidence where Elena Kagan stands; and the few data points we do have do not inspire much confidence.  In fact, they make anybody who is serious about the state of civil rights in America "uneasy". 

In order to make sense of the precarious constitutionality of the Voting Rights, it is crucial to understand what took place in 1980, when the Supreme Court decided – on the same day – the City of Mobile and City of Rome cases.  In City of Mobile, a plurality concluded that Section 2 of the Voting Rights Act codified the 15th Amendment to the Constitution.  In turn, the plurality further concluded that the Fifteenth Amendment only protected the formal right to register and vote, and did not protect against state practices that diluted those rights.  The plurality did agree that the Fourteenth Amendment protects against minority vote dilution but only when plaintiffs could show that the challenged practices were adopted for racially discriminatory purposes.

This conclusion threatened to undermine the foundation of the VRA.  The question was easily stated: could Congress enact a statute under its power to enforce the Fifteenth Amendment that did more than just protect the formal right to register and vote?  The answer, without more, would appear to be no.  Taken literally, the language of the Amendment strongly suggests that Congress had power to enforce whatever the Fifteenth Amendment means.  To conclude that Congress could enforce rights beyond those rights protected by the Fifteenth Amendment might appear to grant Congress some room to define what the substance of the Fifteenth Amendment is under its power to “enforce” the Amendment.

In City of Rome, however, he Court set aside the latest constitutional challenge to the VRA. In an opinion, fittingly enough, authored by Justice Marshall, the Court chose deference over confrontation, judicial humility over hubris, and concluded that this was an old question. The Court offered South Carolina v. Katzenbach and its conclusion that Congress could outlaw literacy tests that were not in their face discriminatory if they “perpetuate[ ] the effects of past discrimination.”  The Court also quoted from Katzenbach v. Morgan’s language referring to the enforcement powers as “a positive grant of legislative power,” and Oregon v. Mitchell’s conclusion that Congress could outlaw literacy tests nationwide even if their implementation was devoid of any traces of purposeful discrimination.

City of Rome was thus a watershed moment in the life of the Act.  Much can be said for Justice Marshall’s opinion, and it would be easy to defend it.  But far more important than its actual holding is the fact that the Court simply chose the path of least resistance.  Rather than engage the difficult arguments at the heart of the case, the Court chose instead to defer to its own past.  Make no mistake, this was a decision the Court need not make.  Powerful and persuasive counter stories were readily available.

The bottom line is simply this: the constitutionality of the VRA has always been a question of constitutional vision.  To the Court, the question early on was a question of racial discrimination and of deference to the findings of Congress about its existence in the world at large. To Justice Black, in contrast, this was something that the federal government could not do, treat the Southern states as “conquered provinces.”  While Justice Black stood alone in the beginning, criticisms within the Court have grown louder through the years.  Presently, the Court’s conservative wing has made amply clear that they are not fans of the VRA.

How would Justice Kagan vote on this issue?  On the evidence we have, it is hard to be optimistic.  Consider first the question of faculty hiring.  Like the constitutional question at the heart of the VRA, faculty hiring is also a question of constitutional vision.  One way to interpret Kagan's hiring is that she had a vision of the law school as a welcoming and inclusive place in terms of ideology; thus her success in attracting noted conservatives to the faculty.  The fact that she did not similarly attract women or minority faculty suggests that, to Kagan, race and gender are no longer pressing questions in our democracy, or at the very least, issues of race and gender need not be addressed directly through a school’s hiring practices.  Discrimination, in other words, is not a problem that we must collectively and affirmatively address, but rather, it is a thing of the past. 

The Clinton era memoranda, when Kagan worked as deputy domestic policy adviser, present a similar picture.  According to Josh Gerstein, Kagan and her boss, Bruce Reed, “thought that the race initiative was pressing for too many race-conscious solutions when the central focus should be a ‘race-neutral opportunity agenda.’”  This is right out of the conservative playbook.  Go take a look at the congressional debates back in 1965 and you will find critics of the Act making precisely this point.  This also fits with the view of many conservatives on the Court today. 

The question for Kagan, then, is this: What is her vision of American society in terms of race and gender?  Without putting too fine a point on it, this is precisely the question she will have to answer when the Court considers the constitutionality of the VRA. 

The Voting Rights Act is not a statute that calls for racial moderation, but rather, for an expansive vision of racial justice.  Based on the few facts we know about Elena Kagan, civil rights supporters have reason to be nervous.