In her Times column from last week, Linda Greenhouse asked "is anyone watching?" This question was in reference to the looming constitutional debate over the constitutionality of the Voting Rights Act. She argued -- correctly in my view -- that the Court is gearing up to strike down the special provisions of the VRA. Yet no one seems to be paying attention. Three issues from her essay caught my attention.
The first is the notion that the Court will not be able to escape ruling on the constitutionality of the act this time around. In the earlier NAMUDNO case, the court offered an idiosyncratic and novel reading of a key provision of the VRA. In so doing, the Court was then able to dodge the constitutional question. According to Greenhouse, however, "[t]here appears to be no convenient off-ramp" in the new case. But this is not quite right. For one, there appeared to be no such ramp in NAMUDNO and yet the Court was able to create one. This is in line with how the Court has historically interpreted the statute. The Court has essentially used the statute as a jumping off point to do whatever it is the court wants to do with the Act. NAMUDNO was no different in this regard.
Furthermore, the way the Court dodged the earlier constitutional challenge has a Bickelian flavor to it, in the sense that the Court was simply looking for a prudential way to set the question aside for the future. This is to say, the real question is why the Court chose to set aside the issue in NAMUDNO, and not the fact that it did. In the next case, one can easily see the Court invoke the "passive virtues" to set aside the challenge. The Court will decide this question when it is good and ready, and not a moment before.
The second issue is one how Greenhouse struck at the heart of the debate over the continued vitality and constitutionality of the VRA. She put the point the following way:
The new briefs were submitted last week. Where one side sees sufficient progress to render Section 5 obsolete, the other sees continued racial polarization and strategies that, while not physically keeping black voters from the polls as in the past, serve to dilute impact of black and Latino votes. The two sides remain far apart on which facts about voting patterns are relevant and on how those facts should be weighed. The answers to those questions, almost certainly, will come eventually from the Supreme Court.
I think this is exactly right, up until the last sentence. This is clearly a question about which both sides disagree, and vehemently so. The question for us is why the Supreme Court is the one institution that should decide such questions. I don't have a good answer, and neither does greenhouse. She simply assumes the answer away, as do most of us. And that is unfortunate.
The third issue is one that I have been thinking about for quite some time. Greenhouse hints at it, though this is more than commentators are often willing to do. The question is whether we are witnessing the beginning of the end for the Second Reconstruction. Greenhouse raises this question by way of Justice Scalia's concurring opinion in Ricci v. DeStefano, a Title VII employment discrimination case. Is the entire civil rights edifice now open to constitutional attack? I have raised this question in the past, and the answer is usually that these statutes now form part of the fabric of our nation and are safe from constitutional challenge. They are, in a word, super-statutes.
Needless to say, we are about to find out if this is so. I am not optimistic.