To strike down the Act as unconstitutional would have required the Supreme Court to engage in the most activist kind of decision-making; imposing its own “instincts” about the need for voting protection over Congress’ judgment based on a voluminous and detailed record. Reading the decision, it’s clear that some members of the Court wanted to do just that. There is some waxing about how “[t]hings have changed in the South” and an insistence that “[t]he evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance.” Ultimately the Court describing itself as “keenly mindful of [its] institutional role,” declines to supplant its own judgment for Congress’.
It’s not a pretty decision. One can almost much see the jagged stitching of the needle and thread it took to stuff eight Supreme Court justices into this 16 page opinion. What emerges is a decision in which the Court, with almost Solomonic precision, splits the difference. Section 5 survives, and the bail-out provision is loosened. It’s a loss for minority voters, despite protestations to the contrary. It will be interesting to see how many similar jurisdictions will now seek to get out from under the important oversight of the Department of Justice. Once jurisdictions are free from preclearance requirements, minority voters in a formerly covered jurisdiction who believe a voting change is discriminatory will have amass the tens of thousands of dollars it costs to litigate a voting rights suit in federal court – a result directly contrary to Congress’ intent in enacting Section 5.
Although the decision paving the way for the NAMUD to bailout was unanimous, there was , of course, the ubiquitous concurrence from Justice Clarence Thomas, who also dissents from the Court’s decision to leave section 5 intact. Despite his feints against so-called “identity politics,” Thomas almost always writes his own opinion –whether concurrence or dissent — in race and civil rights cases. In fact, given the conservative majority on the Court, Justice Thomas may well come to be known as “the Great Concurrer.” It doesn’t have quite the ring of “the Great Dissenter,” but it’s perhaps a fitting moniker for a justice who has been nothing if not consistent in his determination to write concurring opinions in race cases that roughly translated seem to always amount to, “yeah, and as the black justice, I’d go even further than that.” Thomas’ decision in NAMUD is no different. Longer than the majority opinion by several pages, it contains, as always, a long historical race primer. Thomas knows that as the lone black justice his views about race will garner particular attention. He painstakingly sketches the history of racial discrimination in voting up through the civil rights movement. It’s always compelling reading. But it’s a set-up for his dissent. The punch line is always “that was then, this is now.” Although the record amassed by Congress included evidence of discrimination against Native American voters in South Dakota, Latino voters in Arizona and Georgia, black poll workers in South Carolina, Louisiana, Mississippi and Alabama, and which singled out Texas as having among the worst records of voting discrimination, in Thomas’ view it amounts to “a record of scattered infringement of the right to vote.”
Thomas concludes that “[t]he extensive pattern of discrimination that led the Court to previously uphold section 5 as enforcing the Fifteenth Amendment no longer exists.” But this begs the question. Congress has fully recognized that the patterns of contemporary voting discrimination differ from those in place in 1964. The Voting Rights Act was specifically designed to be supple enough to encompass methods which might in the future be used to disenfranchise minority voters, the Senate noted when it authorized the Act. Rather than enumerate and outlaw each individual discriminatory voting practice in use in 1965 or even in 1982 when the Act was last reauthorized, Congress chose to implement a scheme that puts the onus on covered jurisdictions to enact voting changes that pass scrutiny by a federal authority. The record amassed by Congress in 2006 did not demonstrate that the same barriers exist today as did in 1965. Instead Congress found that new (and some old) methods have produced a continuing need for special protection of minority voters in covered jurisdictions. Thomas’ proclamation about the absence of discrimination is just another way of saying that no matter what Congress found in 2006, he’s not buying it. This conclusion would be just fine if Thomas were a legislator (which may be his true calling). Fortunately Thomas’ eight colleagues recognize the need to exercise greater judicial restraint. The NAMUD decision is not the disaster many of us thought it would be. But neither is it a profile in courage. Had the Court followed the course advanced by Justice Thomas and usurped Congress’ authority, it would have seriously compromised its own legitimacy. NAMUD is an inelegant, but cautious decision that preserves a core part of the Voting Rights Act, and the Court’s reputation.
Sherrilyn A. Ifill is a regular contributor to The Root.