Last week, a 3-judge court of the Fourth Circuit Court of Appeals issued a unanimous opinion striking down North Carolina's voter identification laws. Guy offered a terrific discussion of the opinion here, and I don't have much to add to his analysis. It is dead on. I want to focus instead on the lessons of the case about judicial behavior, race, and constitutional interpretation.
Initial reactions to the case have followed the expected scripts. While progressives write that "one of the most brazen attempts in modern times to limit black voters’ access to the polls has now officially failed," state Republican leaders argue instead that “we can only wonder if the intent is to reopen the door for voter fraud, potentially allowing fellow Democrat politicians like Hillary Clinton and Roy Cooper to steal the election.” This is precisely what political polarization looks like. The world looks very different to all of us, depending on where we stand.
The North Carolina decision shows that judges are no different from the rest of us. Reading the opinion took me back to a case decided in 1976, Beer v. United States. This was a case in New Orleans decided under Section 5 of the Voting Rights Act. What reminded me of this case is how differently the lower court opinion and the Supreme Court understood and interpreted the underlying facts. Judge Spottswood Robinson authored the lower court opinion. He saw nuance, he saw implicit bias, he knew history and applied it to the facts at hand. In contrast, the Supreme Court, in an opinion authored by Justice Potter Stewart, simplified things in cartoonish fashion. There was no history, no nuance. The richness of the lower court opinion was transformed into a dry recitation of facts and no appreciation for what made New Orleans a covered jurisdiction in the first place.
This is exactly the McCrory litigation, but backwards. The lower court judge looked at what the Court of Appeals cast as a "suspicious narrative" and saw it in an "innocuous light." The examples the Court of Appeals provided are almost jaw-dropping. For example: "although the court specifically found the above facts, it dismissed Plaintiffs’ argument that this sequence of events demonstrated unusual legislative speed because the legislature “'acted within all [of its] procedural rules.'” The Court of appeals did not buy it. "But, of course, a legislature need not break its own rules to engage in unusual procedures. Even just compared to the process afforded the pre-Shelby County bill, the process for the 'full bill' was, to say the very least, abrupt." (44)
The Court of Appeals responded similarly to the finding that the state had asked for racial data and then changed those voting practices that were disproportionately used by African American voters. To the district court, North Carolina had simply eliminated a system that African Americans "preferred" as "more convenient." The Court of Appeals did not buy it.
For anyone willing to take the long view, the North Carolina omnibus bill has a historical lineage dating back to the late 19th century and the Mississippi plan. This is when Southern states began to remove Black voters from the voting rolls by any means necessary. The Court of Appeals saw the connection: "this sequence of events -- the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose." (46). Of course it does. But the district court judge could not see it.
Notice the import of this discussion: ideology matters, of course. The Court of Appeals judges were nominated by Presidents Clinton and Obama, whereas the district court judge was nominated by George W. Bush. But more importantly, the discussion highlights the need for judicial diversity, for a diversity of perspectives and worldviews. Where one person sees a state seeking to safeguard the integrity of its elections, another sees a bald-faced attempt to suppress the vote. Where one judge sees that "things have changed dramatically" in the last 50 years, another sees a country where racial discrimination continues to infect the electoral system. And so on.
This is why the Scalia seat matters. The gig is up. Constitutional interpretation is not an abstract, objective enterprise. The American public knows better. Win elections, and constitutional meaning will eventually change accordingly. We can see this plainly in the 2016 presidential race. Per a recent 538 analysis: "Clinton And Trump Are Both Promising An Extreme Supreme Court."
This discussion raises a more interesting yet more troubling set of questions. How did we arrive at a place in our constitutional history where the Supreme Court is seen as a judicial oracle, as the ultimate expositor of constitutional meaning? How is this view of the Court possible in a post-Bush v. Gore world? How do we square the fact that "the gig is up" with the apparent respect we accord the Court and its rulings?
This is where the "power of myth" comes in (with apologies to Joseph Campbell). I will say more about this in a future post.