The Breakfast Table

More Cynical Than Minimalist

Walter, you suggest—and, as you point out, others have more fully embraced—the idea that yesterday’s Voting Rights Act decision can be viewed as an exercise in judicial minimalism, the kind of “Over to you, Congress” handoff that we should expect to see from a nonactivist court. I thought so, at first, myself. As one who has criticized (see, for instance, my article “A Tale of Two Justices” in the autumn 2007 Green Bag) Chief Justice Roberts’ overreaching plurality opinion in the court’s last important race-related case, Parents Involved in Community Schools(the Louisville and Seattle voluntary school-integration case) from two years ago, I thought I should probably salute the court this time for disengaging from a profound constitutional debate that appeared beyond its institutional capacity to resolve.

But on reflection, it seems to me that this decision is more properly labeled cynical than minimalist for two reasons. First, the actual holding, that NAMUDNO and other jurisdictions of its ilk are entitled to go for a Section 5 bailout, is an exercise in statutory revisionism that would be too cute by half even without ample evidence, as Dahlia documented yesterday by quoting from the oral argument, that the court’s conservatives didn’t really believe it for a minute. What’s that old saying about applying the law and not making the law?  Here, they rewrote the law. I think Justice Thomas is quite correct to maintain that whatever this is, it’s not a proper invocation of the doctrine of constitutional avoidance.

Second, the notion that Congress can be enlisted to avoid this looming constitutional showdown by readjusting Section 5’s geographic coverage is completely unrealistic, as anyone familiar with the history of the 2006 extension has to know. The decision in Congress not to revisit the existing list of covered jurisdictions was a very deliberate one—made because everyone knew that the extension effort would get hopelessly bogged down if that can of worms were opened. And, with the clock running on Section 5’s expiration date, the whole effort could well have failed. Now, that’s not a pretty picture, and maybe it’s a reason to be suspicious of the whole project. If so, then say that. Don’t pretend that Congress can actually be expected to get its act together to retool and re-tailor Section 5 to the Supreme Court’s satisfaction.

A truly minimalist approach to this case would have been to accept the Bush administration’s invitation to summarily affirm the judgment below that upheld the extended Section 5. Since this case came up not as a petition for certiorari but as a jurisdictional statement within the court’s mandatory appellate jurisdiction, summary affirmance would have been a judgment on the merits, and everyone could have gone away quietly. (By the way, for anyone who would like to see what a truly minimalist opinion looks like, I recommend Justice Alito’s opinion in the “seven aphorisms” case from February, Pleasant Grove City v. Summum, which deftly cuts through all sorts of thorny and unresolved questions about First Amendment forum doctrine to explain why a city that has the Ten Commandments on display in a public park is not thereby obliged to yield to a cult’s demand that it also display a competing, albeit shorter, list of weird aphorisms. A decision the other way would have scattered aphorisms around the countryside like so many Canada goose droppings.)

As for what lies in store for Section 5, Bruce Ackerman has an interesting post on Balkinization, suggesting that a future Obama court would not only uphold but celebrate Section 5. Interesting thought experiment. Perhaps the same scenario occurred to Chief Justice Roberts, close student that he is of the court and American history. If so, that could explain the court’s nonminimalist decision to grab this case for plenary review. The chief justice, deeply skeptical of the Voting Rights Act for basically his whole adult life, might have sensed after the November election that time was not on his side and that he’d better take the opportunity to rein in the act while he could. But time ran out, and his majority, or at least one member of it, ran for cover.