Dahlia, in answer to your question about what the 8-1 vote in the Voting Rights Act case tells us about how polarized the court is: It reveals a court that is both polarized and paralyzed. Clearly, the conservative justices who forced this case onto the court’s plenary docket back in January—rejecting the Bush administration’s request that they summarily affirm the district court decision upholding the Section 5 extension—stared into the abyss and blinked. Or maybe it was just Justice Kennedy who blinked. (See my previous post.) But I’d like to think it wasn’t simply Anthony Kennedy who got cold feet at the prospect of a decision striking down one of the iconic achievements of the civil rights revolution, one that was not simply lying around unattended but that had been re-enacted with near unanimity by Congress only three years ago. I’d like to think the prospect of doing that gave Chief Justice Roberts a few shivers, too. So, of course, that raises the question of what they were thinking back when they decided the challenge to Section 5 needed full briefing and argument. Well, the chief justice’s opinion tells us what at least some of them were thinking: that Congress may well have exceeded its authority under Section 5 of the 14th Amendment to keep the preclearance regime going. Justice Clarence Thomas at least has the candor, in his dissenting opinion, to declare that flat-out. It was obvious from the oral argument back in April, when Justices Souter and Ginsburg were offering up the bail-out issue as a challenge to the appellant’s standing, that the prospect of constitutional avoidance held little appeal for Chief Justice Roberts and his allies, who, at least at that moment, definitely included Justice Kennedy. It’s fascinating that no one from the liberal side of the court said a word here today. That was obviously the result of a considered collective judgment. There was not much they could say that would have made the outcome any better, and there was a distinct possibility that by saying anything nice about Section 5, or questioning their colleagues’ motives, they might have pushed Kennedy in the other direction.
Not that there wasn’t a great deal that they could have said. For those who want to understand why a new political day did not necessarily dawn with the election of Barack Obama (whose name the chief justice studiously avoids mentioning today, referring only to the fact that “minority candidates hold office at unprecedented levels”), take a look at the brief filed “on behalf of neither party” by Nathaniel Persily of Columbia Law School, et al. This brief points out that the 2008 election in fact “revealed the intransigence of racial differences in voting patterns” rather than their disappearance. The election revealed a “widening of the gap in political preferences between racial groups and a greater differentiation between the covered and noncovered jurisdictions.” (This is Section 5 speak for those states and subdivisions in which the preclearance requirements of the Voting Rights Act apply.)
Based on the exit polls cited in this brief, Obama received 48 percent of the white vote in noncovered jurisdictions and 26 percent in places where Section 5 applies. In fact, fewer whites in covered jurisdictions voted Democratic in 2008 than in 2004. Of course, Justice Thomas would say these statistics are meaningless because they don’t reveal intentional discrimination sufficient to overcome the strictures that he believes the court has properly placed on Congress’ authority to enact legislation to protect against violations of core constitutional rights. That’s a battle for another day.
Will the court be able to avoid having that battle? It seems to me today’s opinion invites it. Challenging Section 5 is a movement issue, and it will come back. I’m reminded of a puzzling chapter in the court’s history back in the mid-1980s, when the viability of the exclusionary rule was a hot issue. The court had a routine search case called Illinois v. Gates. The conservatives, seeing it as a vehicle for creating a good-faith exception to the exclusionary rule, added that question to the question originally granted and ordered reargument, over the dissents of Justices Brennan, Marshall, and Stevens, who objected that the Illinois courts had never had a chance to consider the new question. After reargument and the passage of several months, and “with apologies to all,” the majority decided that the dissenters’ objections were well-founded and that the question should not be decided. “A wide exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified,” Justice Rehnquist wrote for the court in June 1983. A year later, in United States v. Leon, the court bit the bullet and carved a good-faith exception out of the exclusionary rule. Lesson (and warning): There’s always another day.