Skip to content

On Voting Rights, Justices Reveal Contempt for Hill

In his confirmation hearings, Chief Justice John Roberts quaintly compared judges to umpires, who objectively call balls and strikes. Furthering that analogy, Roberts and his fellow conservative justices may have just moved the strike zone.

So it appeared during April 28 oral arguments on Congress’ extension of the preclearance provisions of the Voting Rights Act. Lawmakers voted 390-33 in the House and 98-0 in the Senate in 2006 to continue federal oversight of voting procedures in historically troubled jurisdictions.

That law would not be in question were it not for the justices’ campaign against other civil rights laws over the past 15 years. In those cases, some justices sought, often successfully, to invalidate portions of laws such as the Americans With Disabilities Act and the Age Discrimination in Employment Act in the name of their own idiosyncratic, and anti-democratic, conception of federalism.

While staking out these aggressive positions, the right-leaning justices made a variety of reassuring noises: They respect Congress, they will uphold precedent, and landmark laws of prior decades are in no real danger. In particular, they repeatedly held up the Voting Rights Act as the exemplar of “congruent and proportional— legislation. The chief justice gave similar reassurances during his confirmation.

But with their often derisive questioning in Northwest Austin Municipal Utility District Number One v. Mukasey, these justices strongly suggested that neither the overwhelming votes of Congress nor the most extensive record in Congressional history nor even their own prior statements will stand in the way of substituting their own judgment for that of Congress. Lawmakers should keep these volte-faces in the forefront of their mind in considering the replacement for retiring Justice David Souter.

Just five years ago, Justice Antonin Scalia wrote that it was wrong for the court to “check Congress’s homework— in a case like this, calling such scrutiny “a standing invitation to judicial arbitrariness and policy-driven decision-making.— At that time, Scalia flatly declared that “I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause— — long interpreted as giving Congress the broadest discretion — “to decide what measures are appropriate … to prevent or remedy racial discrimination by the States.— Yet there he was, just weeks ago, hectoring the deputy solicitor general with questions like, “How much of the evidence that Congress amassed was specifically circumvention evidence?— and suggesting that Southern lawmakers voted to extend the act only because “they get elected under this system.—

The NAMUDNO argument also seemed to confirm Senate Majority Leader Harry Reid’s (D-Nev.) conclusion that Roberts “didn’t tell us the truth— when he sold himself as a moderate during his confirmation hearings. Back then, Roberts said of the court’s evaluation of civil rights laws: “when you get to the point of reweighing congressional findings, that starts to look more like a legislative function.—

Yet Roberts appeared to have no problem taking on that legislative function in the NAMUDNO argument — debating statistics in the Congressional Record, calling Congress’ reasoning “silly— and demanding to know why Congress didn’t extend the law to, oh, say, Massachusetts. This is a very different jurist from the deferential nominee who won Democratic votes by stating, “Courts can’t make the policy judgments about what type of legislation is necessary in light of the findings that are made.—

Justice Anthony Kennedy appeared just as hostile to Congress and just as self-contradictory. At argument, he hammered home the view that singling out some (mostly Southern) states for federal oversight undermines their “sovereign dignity— and demands strong justification from Congress. Yet in the very 1997 opinion that started the Supreme Court down the path of questioning civil rights laws, Kennedy stressed that the VRA’s “geographic restrictions … tend to ensure Congress’ means are proportionate— to the purpose of protecting minority rights. Subjecting only some states to preclearance, Kennedy said then, made the act more modest and more likely constitutional, not less. But somehow, what he lauded as a “limited remedial scheme— in 1997 turns out to be a dubious “disparity in treatment— in 2009.

The confirmation process for Sonia Sotomayor provides lawmakers an opportunity to confront this kind of unprincipled disrespect for the legislative branch — a constitutional concern as serious as executive branch overreaching and individual rights. Lawmakers should use this opportunity not only to explore Sotomayor’s views on these issues, which are essentially unknown, but to convey to the sitting justices their disapproval of the Supreme Court checking Congress’ homework.

Any major legislation like the Voting Rights Act is to some extent the product of compromise and imperfect deliberation; it could no doubt be improved. But it is inappropriate for the justices to reweigh Congressional findings and decide they could have done a better job themselves. Just ask Roberts — or rather, ask him four years ago.

Harper Jean Tobin is an attorney at the National Senior Citizens Law Center.