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.