Congress vs. the court

Led by Chief Justice John G. Roberts Jr., famous for his endorsement of judicial “modesty,” conservatives on the U.S. Supreme Court seem poised to take the immodest step of striking down a key provision of the Voting Rights Act. Justice Anthony M. Kennedy, a swing vote on civil rights issues, should think twice before joining this wrecking crew.

The act, first passed in 1965, outlaws discriminatory practices. One provision, Section 5, requires states with a history of discrimination to obtain “pre-clearance” from the Justice Department or a federal court in Washington before changing election procedures. Last week, in arguments in a case brought by a Texas utility district, conservative justices suggested that pre-clearance is obsolete and insulting to states that have done away with blatantly racist practices.

“Is it your position today that Southerners are more likely to discriminate than Northerners?” Roberts asked a lawyer for the NAACP Legal Defense and Educational Fund. Kennedy asked an Obama administration lawyer whether the U.S. believes “the sovereignty of Georgia is less than the sovereign dignity of Ohio.”

That’s the wrong question. The issue isn’t whether some states are more equal than others. The issue is whether Congress deserves deference from the courts when it seeks to enforce amendments added to the Constitution after the Civil War. One of those, the 15th, says that the right of U.S. citizens to vote “shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. ... The Congress shall have power to enforce this article by appropriate legislation.”

Congress’ authority seemed obvious to the Supreme Court in 1966, when it turned back a challenge to the original Voting Rights Act. But under Chief Justice William H. Rehnquist, the court nitpicked Congress’ decisions about how to enforce the post-Civil War amendments. In 1997, the court struck down a religious freedom law passed by Congress under its authority to enforce the 14th Amendment. The court said the law lacked “congruence and proportionality” between the injury to be prevented and the means adopted to do so. Such second-guessing of Congress is an illegitimate use of judicial power.

When the Supreme Court rules that Congress has unconstitutionally restricted individual rights by, say, forbidding flag burning, conservatives cry “judicial activism.” Here, conservatives want the court to overturn a law designed to protect the right to vote. That sort of activism is unworthy of the court that upheld the Voting Rights Act four decades ago.