Home / General / More on the Transparent Indefensibility of <i>Shelby County</i>

More on the Transparent Indefensibility of Shelby County


The reviews for John Roberts’s performance in striking down the Voting Rights Act keep coming!

The decision cutting the heart out of the Voting Rights Act was also 5-to-4, but this time along more familiar lines, with Kennedy joining the court’s most conservative four justices. Chief Justice Roberts wrote the decision, siding with Shelby County, Ala., which challenged the law as unconstitutional. The Voting Rights Act’s formula determining which states are covered, he said, was based on old data and therefore treated the southern states unfairly and unequally.

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration’s advocate in the Supreme Court, thought the court’s decision was just wrong.

“Because we’re not there yet,” he says. “We’re not there yet, and the facts on the ground in Shelby County itself showed that.”

Stanford’s McConnell says the decision’s reasoning is just “made up.”

“There’s no requirement in the Constitution to treat all states the same,” he said. “It might be an attractive principle, but it doesn’t seem to be in the Constitution.”

John McGinnis of Northwestern University Law School agrees, suggesting that the court’s conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.

“I’m sorry to say I think this opinion was as singular a failure as I’ve seen in the history of the Supreme Court,” McGinnis said at a recent judicial conference.

When you’re cutting out the heart of what is probably the most important civil rights statute ever passed by the United States Congress and your opinion fails even to identify the constitutional provision the statute allegedly violates, it’s a permanent stain on the institution.

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  • Joe

    I realize the importance of @5, but at times, it is unclear from some of the reporting that there are other sections. Sections 2 and 3 remain important, especially now that Sec. 4 is functionally inert. Anyway:

    “the Union of the Constitution is a union formed of equal States”


    If we cannot trust such age old opinions, what can we trust?

    • Hogan

      I thought it was supposed to be equality of opportunity, not equality of outcome.

    • Scott Lemieux

      Good one — how strange that Roberts didn’t cite that particular bit of precedent.

      • Another Anonymous

        Or Thomas, in his concurrence.

  • Dano

    He’s untouchable. And look at how Tony S is spouting off. They know.



  • Aaron B,

    The states, in their majestic equality…

    • MAJeff

      …are equally free to let their bridges collapse.

      • TT

        Now that the states are equally sovereign as they relate to the federal government maybe an enterprising blue state attorney general should sue the feds to get back all those billions and billions of dollars that the red states vacuum up from the blue states’ pockets.

        • Patrick

          Wyoming is really losing out on naval bases.

          • Davis X. Machina

            OTOH, Rhode Island has no bombing ranges, nor vast desert areas in which to exercise the mechanize forces.

  • Billmon

    The malignant genius of it is the fact that Roberts clearly realized that the key to effectively gutting the VRA was to neutralize the pre-clearance provisions of Sec 5, and that the best way to do THAT was to strike at the tests in Sec. 4. Then he worked backwards from that to arrive at his mythical “equal sovereignty” doctrine.

    This one — like Bush v Gore — where the partisan wires are just dangling out there for everyone to see. Roberts didn’t even really try to hide them. In fact, you could describe his failure to even cite a constitutional clause as a great big deliberate fuck you to the civil rights community.

    “William Bradford Reynolds sends his regards.”

  • Another Anonymous

    Five Republican justices had a chance to influence the 2016 presidential election in favor of more Republican nominations for the Court, and they grabbed it.

  • efgoldman

    … its reviews from academic and judicial conservatives were considerably less admiring.

    And does anybody think Roberts gives a shit, based on his history?

    • JoyfulA

      I suggest preclearance for all states. Pennsylvania in these past two years has been aiming at Shelby County status.

      • SP

        So that resolves the rationale for overturning section 4, then one of the states will successfully sue to overturn section 5 (since they didn’t need to address that given their rejection of section 4)

      • Witt

        +1. Although Voter ID was great for mobilization last year, I have to say.

  • jkay

    But, why should radicals care about reality? Isn’t that what they do? Any more than the Dred Scott Court did?

  • Breadbaker

    Today’s mental problem: devise wording for the Fifteenth Amendment, to be drafted in 1870, or as an amendment to the Fifteenth Amendment, to be ratified in connection with the VRA in 1965, or in 2006 when the VRA was extended, by which Congress and the states could have told the Supreme Court majority in 2013, no, this is really what we meant. Base that wording on any extant doctrine of constitutional law in existence at that time.

    I don’t think you’d change a word of what is actually in the Fifteenth Amendment.

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  • Anonymous

    I’m glad you censored that comment that didn’t fit with the rest of us.

    It makes me uncomfortable to have other viewpoints that don’t match ours.

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