In my focus on the joyful and immediate exploitation of the Supreme Court decision in Shelby County v. Holder by southern Republicans who behaved like they were in the midst of a jail break, I probably gave too little attention to the audacity of the decision itself. Ari Berman of The Nation offered some immediate observations, beginning with the stunning contrast between the Chief Justice’s solicitude for Congress is his dissent against the invalidation of the Defense of Marriage Act with his breezy contempt in Shelby County v. Holder:
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”
Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
But more fundamentally, as 7th Circuit Judge Richard Posner notes in a scathing review of Shelby County v. Holder for Slate, Roberts kind of made up the constitutional foundation for the decision: a previously unheard-of doctrine of the “equal sovereignty of the states.”
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law. “I am sensitive to the controversy which has attached itself to some of the Act’s provisions, in particular those provisions which impose burdens unequally upon different parts of the nation,” Reagan wrote. “But I am sensitive also to the fact that the spirit of the Act marks this nation’s commitment to full equality for all Americans, regardless of race, color, or national origin.” Reagan didn’t go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.
Additionally, Roberts has been around the block enough times to know that a legislative “fix” to Section 4 either won’t happen (that’s my bet), or would take long enough that long-stalled voter suppression efforts in the Deep South will find their way into statute books and election procedures. Yes, the Justice Department and civil rights advocates will try to use Section 2 remedies in the absence of preclearance powers, but winning such cases typically requires after-the-fact demonstrations of harm to minority voting influence.
It took a while, and required looking far away from the congressional history of the Voting Rights Act, and inventing a new constitutional doctrine, but John Roberts got his trophy this week. He should have had the sense of decorum to assign the opinion to someone else.