Online VRA symposium: Reading the tea leaves – the uncertain future of the Act

The following contribution to our VRA symposium comes from Heather K. Gerken, J. Skelly Wright Professor of Law at Yale Law School.

The Supreme Court doesn’t usually like to revisit an issue after punting on it, at least not without allowing a dignified amount of time to elapse.  But the Court is likely to be forced to resolve a challenge to the constitutionality of Section 5 of the Voting Rights Act a scant three years after it ducked the question in one of the most egregious judicial punts in recent memory.  In its 2009 decision in Northwest Austin Utility District No. 1 v. Holder (NAMUDNO), the Supreme Court adopted a highly implausible, if not completely unconvincing, interpretation of Section 5 and thereby avoided resolving the constitutional question.

If NAMUDNO had addressed only the statutory issue on which the decision rested, we would not have many tea leaves to read.  But Chief Justice Roberts took the unusual step of spending a substantial amount of time discussing the constitutional issue the Court was not resolving, just as he did in the recent health care case (to the consternation of many).  And, as with the health care case, NAMUDNO’s dictum should make progressives very unhappy.

On each pivot point in the analysis of Section 5’s constitutionality, the Court had something to say in NAMUDNO, and none of it bodes well for the provision’s future. One of the key questions at stake is whether Section 5 imposes a heavy burden on the states (an important step in evaluating whether Section 5 is “congruent and proportional,” to use the City of Boerne v. Flores formulation, to the harm Congress was addressing).  What did NAMUDNO say? Section 5 imposes “substantial ‘federalism costs’” and in any case “depart[s] from the fundamental principle of equal sovereignty.”

Another crucial question that the Court must resolve in evaluating Section 5 is whether the provision’s long-standing coverage formula – which applies to much of the South and little of the North – still makes sense.  The Court’s initial take? “Things have changed in the South.”  Indeed, the Court went out of its way to list the many areas in which Southern jurisdictions have caught up with the rest of the country.

Or consider what the Court said about the standard of review.   Those who support the Act have long hoped that the Court would follow the lead of D.C. Circuit Judge David Tatel, who wrote the district court decision in NAMUDNO, and apply a kinder, gentler standard to Congress’s decision than Boerne’s.  The Court, however, asserted that “the Act’s preclearance requirements and its coverage formula raise serious constitutional questions under either test.”

What should most worry progressives about NAMUDNO, though, isn’t any of the lines I’ve quoted above.  It’s this one:  “Roberts, C.J., delivered the opinion, in which Stevens, Scalia, Kennedy, Souter, Ginsburg, Breyer, and Alito, J.J., joined.”   Why on earth did the four liberals join this opinion?  Why didn’t they write a concurrence in the statutory argument while dissenting from the rest?  Why give Chief Justice Roberts what amounts to a unanimous Court on these issues (given Justice Thomas’s position on these questions)?

There are two possibilities, neither particularly appetizing for those who care about the Voting Rights Act.  The first is that the liberals’ votes were part of a deal to keep the swing vote – presumably Justice Kennedy – from invalidating Section 5 then and there.  The second possibility is that their decision to join the Chief’s opinion was a desperate attempt to get Congress to fix Section 5.  Perhaps the liberals hoped that a united message from the Court would light a fire under Congress, pushing it to take the steps necessary to protect Section 5 from invalidation.

If the liberals made a deal, then fans of Section 5 better cross their fingers that Justice Kennedy is thinking about the case differently than he was before.  If the liberals hoped to sway Congress, the strategy was a colossal failure.  To be fair to the Justices, it’s hard to get Congress to do anything these days.  But Congress blissfully ignored NAMUDNO’s warnings, and the Court can now say that it gave Congress a fair chance to fix the statute if and when it strikes down Section 5.

Are there any grounds for optimism about Section 5’s future?  Maybe.  Justice Kennedy has been known to change his mind on occasion, and maybe the pushback on the Court’s opinion in Citizens United will take its psychological toll on all of the Justices.  Moreover, there are now several well-written opinions upholding Section 5 from the courts below (two written by Judge Tatel, whose yeoman’s work on these questions entitle him to a love letter from the civil rights community should the Supreme Court leave Section 5 standing).  Finally, as I’ve written elsewhere, because Section 5 is a prophylactic statute that Congress renewed, the Court could apply a different standard to this case without disturbing any of its existing precedent.  But if NAMUDNO is any indication of which way the wind blows, then Section 5, one of the crown jewels of the civil rights movement, may not have much time left.