The Voting Rights Act


The Court’s decision to avoid addressing the constitutionality of the Voting Rights Act is interesting for two reasons.  First, the opinion fits within the “generational cycle” that I discussed last week in the sense that the Justices usually tread carefully in the initial stages of a turnover from one constitutional order (the Reagan Revolution) to another (the Obama whatever you call it).  When Chief Justice Marshall first confronted Jacksonian Democracy in Cherokee Nation, the Court expressed its doubts about the legality of what was going on but dismissed the case for want of jurisdiction.  A year later, of course, the Court came up with something much stronger in Worcester v. Georgia.  During the 1890s, the Justices started their resistance to Populism with a statutory case (E.C. Knight) that avoided the constitutional issue under the Commerce Clause.  Not long after that, the Court got much more aggressive.  Thus, one cannot say that this decision (or the decision to allow the Chrysler sale to go ahead) means that the Justices will keep their powder dry for long.

Second, this case demonstrates a flaw in the ideology of judicial restraint.  To avoid addressing constitutional issues, judges often have to mangle statutory language.  All of the voting rights scholars that I talk to say that the statutory interpretation accepted by the Court is bogus. (Note to aspiring lawyers.   Average attorneys tell you what the law is.  Great attorneys tell you what courts will do.)  In this case, eight of the Justices are guilty of putting their policy preference (we don’t want to address the constitutional question) ahead of the law (the statute gives us no choice when properly interpreted).  On the other hand, Chief Justice Marshall pioneered this approach in Marbury.  Food for thought about what judicial activism is all about.

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1 Response

  1. Mike Zimmer says:

    It is interesting to try to figure why the Court blinked. I am not alone in assuming it was Justice Kennedy who blinked and, perhaps, CJ Roberts changed sides to get to write the opinion. Why did Kennedy blink? Maybe he cut a deal on Ricci, or maybe he saw the tremendous potential significance of pulling the rug from under one of those super statutes that, like some UK statutes, actually are part of the Constitution.