Author: Ronald Krotoszynski


Dissing Congress or Viva Marbury?

I have read with interest commentary on the Supreme Court’s recent decision to grant review in Shelby County v. Holder, a case challenging the continuing validity of section 5 of the Voting Rights Act (VRA) as a congruent and proportional enforcement measure. The common theme seems to be that the Supreme Court should reflexively defer to Congress on the scope of legislation designed to enforce the Civil War amendments. A major premise of this argument is that to do otherwise would be “disrespectful” of Congress and, accordingly, illegitimate. For a recent illustrative example of this argument, see Pamela S. Karlan, Contempt of Court, Boston Review (Nov./Dec. 2012), available at:; for a longer and more sustained iteration, see Ruth Colker & James J. Brudney, Dissing Congress, 100 Mich. L. Rev. 80 (2001).

Of course, the “return the Constitution to the political branches” meme has deep roots. Its modern incarnation can be traced to work such as Mark Tushnet’s Taking the Constitution Away from the Courts (Princeton 1999) and Larry Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (OUP 2004). These contemporary scholarly works draw on an even older tradition in U.S. constitutionalism and constitutional theory generally associated with James B. Thayer.

Thayer advocated a doctrine of consistent restraint on the part of federal courts—judicial review should be used, if at all, quite sparingly and only in cases of glaringly unconstitutional government action. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitional Law, 7 Harv. L. Rev. 129 (1893). Justice Felix Frankfurter’s dissenting opinion in Barnette provides a great example of this approach in action. Justice Frankfurter famously argued that the Supreme Court should defer to the plausible legislative judgment of the West Virginia legislature that all school children within the state should be required to recite the Pledge of Allegiance (on pain of being declared truants and perhaps having their parents declared unfit). See West Virginia Board of Educ. v. Barnette, 319 U.S. 624, 647 (1943) (Frankfurter, J., dissenting) (“The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review.”).

At the end of the day, “disrespect” and “constitutional fealty” strike me as two sides of the same coin. Was it “disrespectful” for the Supreme Court to deny Congress the power to suspend the writ of habeas corpus in Boumediene? Or disallow unreliable show trials (or even no judicial process) for alleged enemy combatant detainees in Hamdi? To reject Congress’s effort to “enforce” the rights of holders of military decorations not to have such honors devalued through public misappropriation by people like Xavier Alvarez? Or to reject Congress’s effort to protect the sanctity of the U.S. flag as a “unique national symbol” in Eichman?

These should not be difficult questions to answer: The Supreme Court always has an obligation to read the Constitution independently of the Congress and the President. Moreover, when an interpretive discrepancy arises, the Supreme Court’s reading of the relevant constitutional text should be controlling. I take this view as the standard reading of Marbury; Federalist No. 78 expressly endorses it, as do the records of the debates at the Federal Convention of 1787. Accordingly, if it is responsibility of the federal courts to interpret and enforce the Constitution, then federal judges must shoulder this task regardless of whether it produces friction with the other branches of the federal government (or, for that matter, with state governments).

Of course, other models exist and judicial review could, in theory, follow them rather than the judicial supremacy model. For example, federal courts could take Thayer’s approach to heart and essentially rubber stamp any act of Congress that Congress claims to be constitutional. Under this view, section 5 of the VRA would be clearly constitutional, “where is” and “as is.” (This question in not merely hypothetical in light of the grant of review in Shelby County v. Holder.) Of course, this would also hold true of the Detainee Treatment Act of 2005, as well as the federal Flag Protection Act of 1989. I suspect that relatively few persons would seriously commit themselves to respecting Congress’s constitutional judgments in both fair and foul weather.

The clear alternative is for federal courts to embrace Marbury and decline to defer to Congress’s constitutional judgments, at least when such judgments conflict with those of the Supreme Court. See Cooper v. Aaron, 358 U.S. 1 (1958). But, a meaningful commitment to this approach means living with judicial supremacy in both fair and foul weather as well—it simply won’t do to be in favor of judicial interpretative supremacy, except when you’re against it.

A third approach would essentially adopt a nakedly results-oriented lens and call for deference when one likes Congress’s work product (and the constitutional interpretations that undergird it) but for the withholding of such deference when one dislikes what Congress has wrought. This position strikes me as intellectually indefensible, but perhaps if one has already adopted the behavioral/attitudinal model of the judicial process, simply calling judicial politics “politics” should not constitute a cause for profound shame or embarrassment. That said, for the Supreme Court to operationalize successfully such an approach strikes me as a very tall order (perhaps even surpassing in difficulty the Twelve Labors of Hercules).

Returning to the central issue in the Shelby County case, and at the risk of repetition, my view remains that Congress, if it wishes to see section 5 of the Voting Rights Act sustained as an appropriate use of its power to enforce the Fifteenth Amendment, should have taken the Supreme Court’s warning, issued in 2009, more seriously. Even now, were Congress so inclined, it could set hearings on the question of suppression of minority voting rights and go about establishing a contemporary factual predicate for the necessity of section 5’s preclearance procedure in covered jurisdictions. To persuade the potentially persuadable (i.e., Justice Anthony Kennedy), Congress must prove to the Supreme Court that a problem in need of a solution exists as much in 2012 as it did in 1965 (or even in 2006, when Congress last renewed the VRA).


Toward a Voting Rights Act for the Twenty-first Century

Following up on my earlier post, and for the record, my own view is that we badly need a Voting Rights Act designed for the twenty-first century. Based on the November 6 federal and state elections, it seems clear beyond peradventure that problems with unequal voting rights are not limited solely to denials that relate to race or only occur in jurisdictions presently covered under section 5 of the Voting Rights Act. Ohio, for example, featured multiple overt efforts to make voting easier for some citizens than others—efforts that had to be thwarted by the federal courts. Pennsylvania’s legislature adopted a strict photo-ID requirement that the Pennsylvania state courts, at the eleventh hour, invalidated. Had this law been in force, literally hundreds of thousands of Pennsylvania voters might well have been disenfranchised.

My point is simple but important: problems in the rules and machinery of our elections are not limited to race-based denials or abridgments of voting. Nor are the problems specific to the states of the former Confederacy. Partisan efforts to deny voting rights based on party identification, economic class, and urban residency appear to be all too commonplace. To be sure, federal courts can and will hear suits and grant relief under the Fourteenth Amendment, but Congress ought to consider enacting legislation aimed at preventing such violations before they occur. Indeed, the Voting Rights Act is arguably both over-inclusive (surely some covered jurisdictions would, if left to their own devices, not attempt to deny or abridge the voting rights of minority citizens) and also seriously under-inclusive (jurisdictions not covered by section 5, such as Ohio and Pennsylvania, plainly seek to make voting harder for some state citizens than for others). Congress can and should act to address this problem via its power to enforce the Equal Protection Clause of the Fourteenth Amendment.

Moreover, Congress’s powers in this area are not, strictly speaking, limited to enforcing the Fourteenth or Fifteenth Amendments. The Constitution grants broad authority to Congress with respect to federal elections for Congress. See U.S. Const., art. I, section 4, clause 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). Accordingly, questions relating to early voting, voting by mail, and the like could be determined by Congress (at least for House and Senate elections). Although the Constitution gives the states great discretion to structure the selection of presidential electors, see id. at art. II, section 1, clause 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”), it is doubtful that states would exercise this discretion by conducting dual elections, with one set of rules governing congressional races and another for state, local, and presidential electoral contests.

Voting constitutes a fundamental right for purposes of applying and enforcing the Equal Protection Clause (so holds Bush v. Gore, by a 7-2 margin, and numerous other precedents). Simply put, the protection of voting rights in the twenty-first century should not be limited to addressing the problems of the twentieth century. Given the clear lessons of November 6—and regardless of whether the Supreme Court forces Congress to act by invalidating section 5 in the Shelby County v. Holder case—Congress should take a careful and comprehensive look at the problem of state efforts to deny or suppress voting rights.


The “Alabama Punting Syndrome” Revisited: Section 5 of the Voting Rights Act and the Problem of Congressional Inattention to “Constitutional Flares”

It’s fall, and the NCAA football season is in full swing. (Obligatory “Roll Tide!” omitted.) My former boss, Judge Frank M. Johnson, Jr., once wrote of the “Alabama Punting Syndrome.” See Frank M. Johnson, Jr., The Alabama Punting Syndrome: When Elected Officials Kick Their Problems to the Courts, Judges Journal, Spring 1979, at 4. By this, he was referring to his frustration with the failure of Alabama state government officials in general, and Governor George C. Wallace in particular, to respond adequately to federal court orders requiring the remediation of unconstitutional conditions in the operation of important state institutions (prisons and mental hospitals). Rather than respond in good faith to orders identifying unconstitutional conditions, the state simply did nothing and “punted” the problem back to the federal courts to resolve.

Judge Johnson, faced with the prospect of either placing important state functions into federal court receivership or permitting Alabama to continue operating state institutions in patently unconstitutional ways, elected to place the state’s prisons and mental hospitals under direct federal court supervision incident to “structural injunctions.” For an excellent discussion of the problem and Judge Johnson’s novel solution, see Owen M. Fiss, The Civil Rights Injunction (1978).

In the case of persistent unconstitutional conditions, doing nothing was simply not an option. Accordingly, when Alabama defaulted on its constitutional duties, the federal court moved to protect and enforce constitutional values. In so doing, to paraphrase Chief Justice John Marshall in Marbury, Judge Johnson ensured that where there was a constitutional right, there would be an effective remedy. At the same time, however, Judge Johnson was deeply ambivalent about federalizing important state functions; he would very much have preferred that state government officials address the constitutional problems in the day-to-day operation of the state’s prisons and mental hospitals directly and in good faith. In other words, one would be mistaken to think that Judge Johnson wanted the ball back. In fact, he firmly believed that state government officials had a duty to implement, in good faith, a lawful federal court order requiring remedial measures.

The contemporary Congress appears to have taken a page from the Alabama state government of the 1960s and 1970s. By this, I mean that Congress has “punted” important questions that will force federal courts to ask and answer questions that many federal judges would rather avoid. More specifically, I am speaking of the Supreme Court’s recent grant of a writ of certiorari in Shelby County v. Holder, No. 96-12, to consider the constitutional status of section 5 of the Voting Rights Act of 1965.

Section 5 requires covered jurisdictions to pre-clear any changes in state voting procedures with the Department of Justice; in order to become a covered jurisdiction, the Department of Justice must demonstrate a prior history of denying or abridging minority citizens’ voting rights within the jurisdiction. Section 5 is a bit like the “Hotel California” in that “you can check out, but you can never leave.” To be sure, there is a statutory provision for escaping “covered jurisdiction” status (section 4 of the Voting Rights Act), but it requires a high standard of proof and relatively few covered jurisdictions have succeed in meeting it. Meanwhile, legal and social conditions in 2012, although far from perfect, are plainly quite different than they were in 1965. (Recall that the events associated with the Selma-to-Montgomery March, of March 1965, served as a direct impetus for enactment of the Voting Rights Act.) The question that the Supreme Court will decide boils down to this: are conditions in 2012 sufficiently similar to conditions in 1965, such that requiring covered jurisdictions to seek and obtain federal approval for any changes in voting rules and procedures constitutes a justifiable policy to prevent violations of constitutionally protect voting rights?

Current case law, under City of Boerne v. Flores, 521 U.S. 507 (1997), and Board of Trustees v. Garrett, 531 U.S. 356 (2001), requires that enforcement legislation aimed at preventing violations of the Fourteenth and Fifteenth Amendments be “proportional and congruent” to the risk of future bad behavior by state governments. To over-prevent is to cease “enforcing” the substantive provision and instead to rewrite the substance of a constitutional right. If section 5 no longer addresses probable constitutional violations that would otherwise occur, the provision isn’t congruent under the logic of the Boerne/Garrett line of precedents.

In Northwest Austin Utility District No. 1 v. Holder, 557 U.S. 193 (2009), the Supreme Court dodged the question of whether changes in contemporary state behavior rendered the section 5 preclearance procedure overbroad – i.e., whether it seeks to prevent constitutional violations would otherwise exist in the absence of section 5. Chief Justice Roberts, writing for the majority, noted that “[i]t may be that these improvements [in securing equal voting rights] are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.” Id. at 203. He added that “[t]he statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.” Id. Thus, the Supreme Court put Congress on very clear notice that, if it wanted to see section 5 sustained as a permissible means of preventing constitutional violations, it needed to do a better job of documenting that section 5’s scope of coverage remained plausibly necessary with respect to covered jurisdictions.

Now, more than three years later, the other shoe appears ready to drop. In Shelby County v. Holder, the Supreme Court appears poised to squarely decide whether section 5 remains a proportional and congruent remedy to enforce the Fifteenth Amendment.

In light of the clear warning issued in Northwest Austin Utility District No. 1, at a minimum, some sort of fact finding about contemporary efforts to suppress minority citizens’ voting rights would seem to have been requisite. Better still, Congress could have considered amending section 4, the provision that releases covered jurisdictions from continuing federal oversight of changes in voting procedures (by liberalizing it). Some conservative members of the Supreme Court would probably prefer an even stronger second look; perhaps something like a requirement that the Department of Justice renew de novo its proof that a particular jurisdiction needs active federal supervision of its electoral machinery to avoid future constitutional violations. The Supreme Court’s cases on releasing local school districts from desegregation orders (and concomitant continuing federal court supervision) could provide some useful guideposts regarding precisely what the Justices in the conservative majority likely have in mind.

What has Congress done? Precisely nothing. Even if Congress is not much inclined to modify sections 4 or 5 of the Voting Rights Act, it might at least have considered taking the hint, if only to show that it acknowledged and credited the “constitutional flare” sent up by the Supreme Court in Northwest Austin Utility District No. 1. (On “constitutional flares,” see Krotoszynski, Constitutional Flares: On Judges, Legislatures, and Dialog, 83 Minn. L. Rev. 1 (1998).)

To be clear, I am not claiming that section 5 has clearly done its work and that no contemporary need for such a statutory provision exists. Nor am I saying that the provision is plainly needed in 2012. Rather, I am positing that, if advocates of section 5 in Congress wish to see the provision sustained as still proportional and congruent to a contemporary constitutional problem, they should have taken the time and trouble to respond in some meaningful way to the Court’s concerns – concerns expressed over three years ago in June 2009.

In my view, ignoring the Supreme Court’s clear constitutional warning constitutes a kind of “Alabama punting syndrome.” When federal courts offer a clear warning that a government policy appears to suffer from constitutional defects, the executive and legislative branches should bestir themselves to action – at least if they want the Supreme Court to sustain the statutory provision or policy in question going forward. In the case of the Voting Rights Act, Congress has punted, and this fact is going to make it much harder for the Solicitor General to convince a majority of the Supreme Court – and Justice Kennedy in particular – to vote to sustain the continuing validity of section 5.

I am quite confident that a good argument in favor of the continuing need for section 5 could be made, but Congress has failed to make it (at least to date). Moreover, I seriously doubt that the Supreme Court’s conservative majority will be willing to credit arguments from the executive branch set forth in legal briefs to the Court. Even if Congress is not much inclined to amend section 5, it should, at a minimum, craft a contemporary record of state and local government behavior that demonstrates the continuing need for strong federal medicine to prevent state governments from engaging in unconstitutional efforts to suppress voting rights. Instead, Congress has punted, and the Supreme Court is likely to respond by simply invalidating section 5 of the Voting Rights Act.