Tuesday, June 25, 2013

Who watches the watchmen? The Court's gutting of a "crowning achievement of the Civil Rights movement" (and, not incidentally, Congress' power to enforce civil rights)

So the Voting Rights Act decision is in. In Shelby County v. Holder today, the Court invalidated section 4 of the VRA, which determines which states and localities are subject to section 5. (Section 5 is the operative provision of the Act; it requires states and localities identified pursuant to section 4 -- in practice, states and localities with a history of racial discrimination in voting, most of them in the South -- to obtain "preclearance" from the Justice Department before altering their voting policies.) Based on Adam Liptak's report in the N.Y. Times, it appears the five-Justice majority (the predictable suspects: Roberts, Scalia, Kennedy, Thomas, Alito) held that Congress could not continue to rely on voting data compiled in the 1960s in renewing the list of states identified by section 4, as Congress did most recently in 2006. As Liptak's article points out, the ruling technically leaves Congress free to reauthorize section 4 based on more-recent data; but the currently polarized Congress is highly unlikely to do that anytime soon. The result is that section 5's preclearance requirement is now meaningless, as there are no states or localities identified by section 4 to which that requirement can be applied.

There are a number of troubling things about this ruling, but the most troubling to me is the self-interested shift of constitutional power from Congress to the Court that the ruling manifests. The Fifteenth Amendment to the Constitution prohibits racial discrimination in voting by the states (or the federal government) and, in section 2 of that Amendment, gives Congress "the power to enforce" its provisions "by appropriate legislation." Section 5 of the Fourteenth Amendment similarly grants Congress power to enforce the important operative provisions of that Amendment, including its guarantees of equal protection and due process of law. But the Court, under the banner of states' rights but, one suspects, worried in fact about its own authority as the arbiter of constitutional meaning, has from the start been parsimonious in interpreting the scope of Congress' powers under these provisions. Under the Court's current doctrine, Congress cannot exercise its section 2 or section 5 enforcement powers unless it does so in a way that is "proportional" to and "congruent" with the denials of rights by the states that Congress is trying to remediate or prevent. In practice, this means the Court itself retains the authority to say, in essence, whether the problem Congress is trying to redress is severe enough to justify congressional action, and whether the action Congress has taken is an appropriate way to redress the problem.

Today's ruling continues this trend. By negating congressional enforcement under section 2 where that enforcement is not backed up with current data about on-the-ground voting practices, the Court is in essence subjecting Congress to a heightened level of scrutiny when it wields its civil-rights enforcement powers. It isn't enough, apparently, that Congress has a rational, reasonable argument that threats to voting rights still exist and that preclearance in these states is an effective way to meet those threats. Now Congress must actually prove its case to the courts before it can exercise its constitutionally delegated authority.

I think this has it exactly backwards. It makes sense to require the government to affirmatively establish a strong justification whenever it acts to deprive someone of a constitutionally guaranteed right -- although even in rights cases, as any 1L Con. Law student knows, the Court is very deferential to the government in all but a handful of contexts. But it makes little sense to require the government to affirmatively establish a strong justification whenever it acts pursuant to one of its constitutionally granted powers -- particularly when the power in question was granted precisely for the purpose of preventing or remediating rights violations by the state governments. The whole point of section 5 of the Fourteenth Amendment and section 2 of the Fifteenth Amendment was to allow Congress, using general legislation, to bypass the cumbersome process of litigation in the courts that otherwise would be necessary whenever voting or other rights are violated. By subjecting congressional enforcement of voting rights to what is essentially heightened judicial scrutiny, the Court substantially defeats that constitutional purpose.

Worse, the Court does so in a way that enhances its own institutional power. Under current law (as magnified by today's ruling), Congress in effect must get the Court's permission before enforcing voting rights, permission that (today's decision suggests) will not be forthcoming without a well-developed and contemporaneous factual record. Presumably even a statute that passes muster would have to be revisited by Congress every few years, lest the factual basis for the statute go stale. The result is a substantial shift of constitutional power from Congress to the courts, one that parallels what the Court has been doing to Congress' power to regulate commerce since the early 1990s.

The Court's legitimacy is on its firmest ground when it acts as a relatively impartial arbiter of disputes between the government and its citizens, disputes that the political branches themselves cannot be trusted to resolve because their own authority is at stake. Of course, every time the Court invalidates some state or federal statute, in some sense the relative power of the Court is enhanced. But this becomes a serious problem when the very subject of the dispute is the Court's own power; in such cases the Court cannot claim to be a relatively neutral arbiter. By subordinating Congress' authority to enforce civil rights to its own supposed authority to interpret the scope of those rights, the Court opens itself to reasonable charges that it is simply playing power politics.

Who watches the watchmen?

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