It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a “more perfect Union” (a criterion only slightly more restrictive than a “more perfect world”), can impose its own favored social and economic dispositions nationwide.
So wrote Justice Antonin Scalia, the leading exponent of “judicial restraint,” which holds that unelected judges should not invalidate legislation adopted by the people’s representatives unless it clearly violates the written Constitution, so as not to impose their own “personal views.”
But what happens when justices ostensibly committed to this core principle of conservatism confront a long-standing civil rights statute that offends their view that law should be color-blind, even if the world is not? On February 27, 2013, the Supreme Court’s conservative justices appeared ready to abandon all judicial restraint as the Court heard oral argument in Shelby County v. Holder, a case from Alabama challenging the constitutionality of a central provision of the 1965 Voting Rights Act. That provision requires specific states and counties, each with clear records of denying blacks and others the right to vote, to get federal approval before they change their election laws. The Court has upheld the provision, known as Section 5, on four previous occasions, reasoning that the Constitution’s Fourteenth and Fifteenth Amendments expressly assign Congress broad power to enforce voting rights.
This time around, though, it looks like the Court will condemn the very provision it has repeatedly blessed. If so, the decision would mark the first time since 1875 that the Court has struck down a federal voting rights statute. And if the Court also imposes new limits on affirmative action, as it may well do in a case reviewing the University of Texas’s admissions program, the term could shape the Roberts Court’s legacy as one of the most hostile since the Civil War to efforts to redress continuing racial inequality.
Section 5 requires nine states and select jurisdictions in seven other states to obtain approval from the Justice Department or a three-judge federal court in Washington, D.C., for any change in their voting laws. To get approval, called “preclearance,” they must show that the proposed change does not deny or abridge the right to vote based on race or color. In most instances, the entire process can be done by mail, and Washington blocks very few proposed changes. But by putting the burden on the state to show that its law is valid, Section 5 deters states from illegal voting practices. Congress initially imposed this preclearance requirement on states with the worst records of race discrimination in voting; not surprisingly they were concentrated in the South. In addition to Alabama, they still include Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia.
The legal issue before the …
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