Dear Walter and Linda:
Welcome back, Walter, and welcome, Linda! We are so thrilled to have you join us for what I believe to be the eighth annual end-of-term Breakfast Table.
The Supreme Court just surprised the heck out of everyone, I think, by deciding the explosive Voting Rights Act case you briefly discussed last night, Walter. It was a decidedly nonexplosive resolution of this question, as evidenced by the 8-1 vote.
Here is the link to the decision, which does not strike down Section 5 of the act but ducks the big constitutional question and, on more technical grounds, lets the little Northwest Austin Municipal Utility District “bail out” from the Justice Department’s “preclearance requirement” for making changes to local voting rules. The “preclearance requirement” singles out only the so-called “covered” jurisdictions—all or parts of 16, mostly Southern, states with histories of racial discrimination in their voting practices—for special government clearance when they change their voting rules. These covered jurisdictions are supposed to be permitted to “bail out” from their preclearance obligations, but this case arose because a small Texas municipal district was not permitted to do so. The lower courts had said that was because it was technically ineligible under the statute (because it’s a political subdivision that doesn’t register voters). But the court finds today that it should have been.
In an opinion authored by Chief Justice John Roberts, the court notes, “Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5.” Justice Clarence Thomas, dissenting in part, says he would have found that “Section 5 exceeds Congress’ power to enforce the Fifteenth Amendment” and that “the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains.”
Talk about your narrow decisions. I am still reading the opinion and Thomas’ partial dissent, but Walter and Linda, I am curious whether you think the court made the decision to leave this landmark piece of civil rights legislation intact at least partly in response to the landmark public discussion of race in America that Walter alluded to in his first post. Today’s ruling turns the temperature way down on the Sotomayor confirmation, doesn’t it? And Linda, what does all this minimalism and agreement mean for your contention that the court is now more hopelessly polarized than ever?