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?

What happened to the Liberals in NAMUDNO?

The Supreme Court today upheld the constitutionality of section 5 of the VRA with only Justice Thomas dissenting. Because most of us believed that the Court would find the Act unconstitutional, the majority of the commentary has focused on the conservatives on the Court. Did Justice Kennedy refuse to go along as Luis suggests? Did the Court punt, as Heather Gerken explains? Is the Chief channeling Bruce Ackerman as he intimates? Did the Chief Justice blink, as Rick Hasen provocatively proposes? Is the Chief now a master facilitator as Jamal Greene notes? For me the question is not what happened to the conservatives, but what happened to the liberals.


Let's look carefully at the text of the opinion that Justices Stevens, Ginsburg, Souter, and Breyer agreed to without a single word in dissent.
1) The past is not prologue: 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."
2)The Act departs from the "historic tradition" of equal state sovereignty: 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. (Incidentally, I think this equal state sovereignty point makes it hard to accept Ackerman's explanation of the majority opinion in NAMUDNO
3) The Act imposes "substantial federalism costs". (And here is the kicker.) These costs are "serious" whether one applies the more forgiving "rational" relations test as opposed to the harder "congruence and proportionality test."

Do the liberals believe this? Was their silence part of an implicit bargain? The Chief did everything but rule section 5 unconstitutional and the liberals went along with it. Perhaps the price paid, preserving the constitutionality of section 5 (in name only?), was worth it. Maybe the Chief was blinking or maybe he was winking.

Thoughts on NAMUDNO

The Supreme Court handed down its decision in NAMUDNO v. Holder this morning.

And rather than confront the big issue head on, the Court essentially punted, setting the big question aside for another day. The special provisions of the Voting Rights Act remain in the books, ready for the next challenge.

The case raised two questions: First, can the utility district, which is neither a county nor a parish and does not register voters (and thus not a "political subdivision" under the explicit statutory definition) bailout from coverage of Section 4 of the Act? And second, if the utility district cannot bailout, then they argued that the preclearance requirements are unconstitutional.

The Court only reached the first question and concluded -- in a surprising 8-1 opinion authored by the Chief Justice -- that the utility district can attempt to bailout under section 4. While invoking the "constitutional avoidance" doctrine, in other words, the Court disposed of this challenge on statutory grounds. I have two initial thoughts about NAMUDNO and the Court's approach.

(1) Why would the Court avoid the constitutional question? Anybody who read the transcript of the oral argument could appreciate that the constitutionality of the Act rested on uncertain ground. Those who count votes could see at least 4 votes against the Act, and Justice Kennedy seemed a likely fifth vote. How did we get from that state of affairs to the decision we got today? One answer may very well be that the conservatives could not get Kennedy to go along. This is a big step, after all, and Kennedy might not be ready to take it quite yet. If this is true, then this outcome is the best that the conservatives could get, and the "liberals" were happy to go along, as this was a much better outcome than they had a right to expect.

If I am right about this, then the Act remains on solid constitutional ground for the foreseeable future. Justice Kennedy could always change his mind, of course, but until then, constitutional challenges to the Act are likely to go the way they always have. This is now the sixth challenge to the Act since its initial enactment in 1965 (Katzenbach; Morgan; Georgia; City of Rome; Lopez; NAMUDNO), and each and every time, the Court has deferred to the wishes of Congress. So the real question for the future is, why would the Court change its mind? What would have to happen for the Court to strike down this law? These questions lead me to my second thought . . .

(2) The Puzzle that is Justice Thomas. Eight justices were willing to set down the constitutional question and decide the case on statutory ground. Justice Thomas was not. He not only wanted to reach the constitutional question, but he also would strike down the special provisions of the Act as beyond the powers of Congress to enact.

This is remarkable. Remember that Justice Thomas is one of those rarified "classical jurists" who, as opposed to the "liberals," does not make law from the bench. Yet here he is in NAMUDNO, wishing to strike down portions of the Act because Congress did not put in the record enough evidence to satisfy him about the need for the statute any longer. Make no mistake: Congress had plenty of evidence in the record, thousands of pages worth. But the evidence Congress did have was not the evidence Justice Thomas wanted.

To Justice Thomas, Congress must have evidence of intentional racial discrimination in order to justify the extension of the Act any longer. In fairness, this makes some sense: the argument dates back to City of Rome, when the Court decided on the same day that the Fifteenth Amendment embodied a standard of intentional racial discrimination. Note: Could Congress prohibit state voting practices devoid of purposeful discrimination but only with a discriminatory effect? According to Justice Thomas, the answer is no. The full Court, in City of Rome, disagreed. Shouldn't Justice Thomas at the very least recognize this disagreement? And wouldn't a "classical jusrist," uninterested in writing law but only in interpreting it, side with all the prior rulings upholding the constitutionality of the Act?

To state the obvious: we are about to embark on a historic debate on the nomination of Judge Sotomayor to the Court. I am sure we will hear a lot about the conservative justices and their penchant for interpreting law, not making it, for calling balls and strikes, not for writing the rules of the game. When you hear these comments, think about Justice Thomas in NAMUDNO. Think also about the upcoming Ricci case. Talk to me then about judicial activism and "classical judicial jurists."