June 19, 2009

Since I've made a few posts about my dad and the Supreme Court lately (with the notable exception of yesterday), here's a piece he wrote a few days ago.

While Supreme Court watchers have been sparring over whether Judge Sonia Sotomayor once said something racist, the Court itself has been considering whether to rip the heart out of the most effective civil rights law ever passed.

The endangered law is Section 5 of the Voting Rights Act of 1965, and the showdown will come in the next two weeks when the Court decides the case of Northwest Austin Municipal Utility District No .1 v. Holder, sometimes nicknamed the MUD case.

Based on the Justices' questions at the oral argument in April, the Court seems to be evenly split. In the end, it may be outgoing Justice David Souter, in his last act as a Supreme Court Justice, who finds a surprising way to save the law.

The question for the Supreme Court to answer is not quite what many people think it is. Many think the question for the Court is is simply whether the protections of the law are still needed, but that was actually the question for Congress to answer. Congress, which has the responsibility to enforce the guarantees of the 14th and 15th amendments, answered that question in the affirmative only three years ago. After extensive hearings and a 15,000-page record, Congress voted to renew Section 5 in 2006 by bipartisan margins of 390-33 in the House and 98-0 in the Senate. President Bush signed the bill in a Rose Garden ceremony. At this stage, the question for the Justices is not whether they themselves believe the protections of Section 5 are still needed, but whether Congress acted reasonably or was so far off the wall that its action was unconstitutional.

The difference between the two questions may decide the case. If the Court focuses on whether Congress acted reasonably, it will probably uphold the law. If the Justices—or a majority of them—believe they can override Congress based on their own views about what protections are still needed, the outcome is anybody's guess.

Whether Section 5 is still needed is central in the MUD case because it is a temporary remedy. As part of the Voting Rights Act of 1965 that broke the back of disfranchisement in the South by outlawing literacy tests, Section 5 was included to protect the gains and prevent backsliding. For states with the worst history of discrimination, Section 5 set up a special streamlined procedure to block new, potentially discriminatory voting rules. It acts as a "temporary injunction," suspending all new voting rules until they get federal approval ("pre-clearance"). This is in contrast to the ordinary procedure of allowing new rules or laws to be enforced unless and until someone goes through the difficult, lone and expensive process of bringing and winning a lawsuit. As Chief Justice Earl Warren said in 1966, Section 5 was adopted "to shift the advantage of time and inertia from the perpetrators of the evil to its victims."

Since its adoption, Section 5 has blocked thousands of discriminatory voting rulers—from major changes like gerrymandering designed to keep county councils all white, to smaller ones like a last-minute move of a polling place to a remote location inaccessible to black voters. Many of the discriminatory changes blocked by Section 5 have been very recent. In one example, discussed in the oral argument in the MUD case, a Texas county tried to minimize black voting in a special election by scheduling it during the vacation time of the local black college.

The stringency of the remedy, and the formula that covered only certain states, were based on a massive record before Congress. The Supreme Court held in 1966 that Section 5 was well within the constitutional power of Congress to enforce the 13th, 14th and 15th Amendments.

Since then, Congress has revisited the continuing need for Section 5 on four occasions, the most recent being the 2006 renewal. Each time it has concluded that the law is still needed to block voting discrimination. In the past, the Supreme Court has rejected constitutional challenges to the law and has upheld Congress's judgment.

The question now is whether this Supreme Court will defer to the judgment of the legislative and executive branches or whether the Court will substitute its own contrary belief about what laws the nation needs.

The Court has gone down this road before, and the result was an unmitigated disaster. That was in 1883, in the aftermath of the Civil War and Emancipation, when the Court struck down a civil rights law that Congress thought was necessary but the Court thought was not.

Then as now, the question was how long civil rights laws would be needed to prevent racial discrimination. Congress passed a series of protective laws including the Civil Rights Act of 1875, which outlawed discrimination in restaurants, theaters and other public places. The need for the law was shown by massive evidence before Congress of systematic and violent resistance to the rights of the freedmen.

But when the law came before the Supreme Court in United States v. Stanley (also called The Civil Rights Cases), the Court made its own political judgment about what laws were needed and for how long: "When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the process of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law."

Congress had made the decision that the time to let up was "not yet," but the Court on its own said the time was "now," and held the statute unconstitutional. Justice Harlan accused the Court of turning the 13th and 14th amendments into "splendid baubles, thrown out to delude those who deserved fair and generous treatment from their nation," but he was a lone voice in solitary dissent. The 1883 case paved the way for the world of Jim Crow, even before the decision in Plessy v. Ferguson.

(In a foreshadowing of current events, the opinion in The Civil Rights Cases was written by the Justice (Joseph Bradley) who six years earlier had cast the deciding vote to pick the President of the United States after the 1876 elections were contested because of disputed votes in Florida (!) and two other states.)

More than a century later, the same concept of judicial supremacy was being heard at the oral argument in the MUD case, especially from Chief Justice Roberts and Associate Justice Scalia.

The Chief Justice compared the problem of voting discrimination to a joke about a man using an elephant whistle to keep imaginary elephants away—a comparison that makes sense only if you believe voting discrimination is nothing but a figment of someone's imagination.

Justice Scalia derided the strong congressional vote, saying the Senate's 98-0 vote made him suspicious (apparently forgetting that his own nomination as a Justice was confirmed by the same 98-0 vote).

The comments of these Justices contrasted sharply with their oft-professed view that judges should defer to policy choices of the legislative branch, and with their criticism of so-called "judicial activism" of earlier courts. But whereas earlier decisions were "active" in overriding Congress to enforce the guarantees of the Bill of Rights and the constitutional promises due process and equal protection of the law for every citizen, the new judicial activism of the Chief Justice and Justice Scalia seemed to be enlisted in the cause of resisting Congress's efforts to make constitutional rights real and effective.

By the end of June, all these speculations will be answered in the Court's decision.

Which is where Justice Souter comes in. Early in the argument, he began questioning whether the MUD district had "standing to sue" and whether there was an actual "case or controversy." These requirements must be met for any case to be in federal court, and they depend on proof from the plaintiff—here the MUD district—that it has a real dispute as opposed to a theoretical disagreement.

Justice Souter's questions are critical because the MUD district, while arguing that it shouldn't be covered by Section 5 at all, doesn't have a voting rule it is seeking to enforce. And it may not ever have one, since its elections are all conducted by its county—which not only supports Section 5 but has filed a brief in the Supreme Court saying so.

If the Supreme Court dismisses this case for lack of MUD's standing to challenge the constitutionality of Section 5, it will not end the controversy over the law, but it will leave it for another day. And if Justice Souter leads a majority of the Supreme Court to a decision saving Section 5, even for a time, it will be a fitting end to a fine career.