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More Shelby County: A Decision That Remains Indefensible

[ 48 ] July 10, 2013 |

Both chez Volokh and in comments at Crooked Timber, Johnathan Adler attempts (without quite endorsing the results) to do what John Roberts and his apologists have manifestly failed to do: offer a remotely credible defense of the holding in Shelby County. It’s a thankless task, so the arguments are worth engaging with. I see a couple of major points. The first:

Phrased this way, the question misunderstands the premises underlying the majority opinion and, as a consequence, illustrates a fairly fundamental divide between the way many on the Left and Right view questions of federal power. The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

The failure of Shelby County to identify a constitutional provision Section 5 violates might not be a problem, according to Adler, because the issue is a lack of federal authority as opposed to Congress transgressing a provision of the Constitution. It is worth noting, however, that Roberts — perhaps realizing that an argument that Congress lacked textual authority was going to have trouble getting airborne given that Section 2 of the Fifteenth Amendment provides clear textual authority for the statute — does at least gesture towards textual limitations (in the way that Kennedy’s almost-as-incompetent DOMA opinion flirted with federalism.) The problem is that the first he cites (the Tenth Amendment) is in this context an irrelevant tautology, and the second (the “equal sovereignty of the states”) is neoconfederate gobbledygook with no basis in the text of the Constitution and no basis in precedents that retain any credibility after Appomattox.

This aside, what exactly is the basis for arguing that Section 4 exceeds federal authority, given the explicit textual authorization contained in the 15th Amendment and the fact that the preclearance provision is clearly rationally related to the end of protecting voters against racial discrimination? Here, Adler turns to the formula that the Rehnquist Court invented to make it harder for Congress to exercise its clear textual authority to enforce the civil war amendments:

As I noted in my post, the idea that the degree of federal intervention should be proportional to the nature of the problem, and not merely plausibly rational, is not an invention of the Shelby County decision. Rather it’s how the Court has interpreted the 14th Amendment enforcement power for some time. The power to “enforce” with “appropriate” legislation must be congruent and proportional to the harm Congress seeks to prevent. This does not require judges to believe that Congress has adopted the “right” response, but only that there is some degree of fit between the legislation and the underlying problem. Such an analysis easily incorporates some degree of temporal context.

It should be noted immediately that this isn’t what Roberts says he’s doing — he doesn’t cite the congruence and proportionality test, or City of Boerne, or Morrison. (Of course, doing so would be inconvenient, given that both cases distinguished the preclearance provisions as examples of acts of Congress that were congruent and proportional.) He just smuggles a some kind of narrow tailoring requirement into Section 2 of the 15th Amendment without any serious attempt to justify it. So we can’t know exactly why Section 4 is supposed to be incongruent and/or disproportionate. But given that Congress carefully selected a limited number of states and allowed any state covered by preclearance to bail out of the requirements, it’s hard to see how Section 4 could exceed the authority granted to Congress by the 15th Amendment. The bailout point is a very important one — as Ginsburg pointed out, the history of bailouts (and bail-ins) “exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions.” Roberts’s comprehensively inadequate opinion fails to address this point at all.  Particularly as applied here, the requirement for congruence and proportionality (or whatever you want to call Roberts’s nameless substitute) is little but a manifestation of free-floating hostility to civil rights enforcement that ensures that Congress will always be doing too much or too little to properly use its 14th and 15th Amendment powers unless a majority of the Supreme Court approves of the policy ends Congress is pursuing.

And while the cases are not wholly comparable given that one involves federal powers and one involves state power, it’s worth noting that when it came to the power to limit the franchise as opposed to the power to protect access to the franchise, the Supreme Court was willing to cede nearly unlimited power to the state (although the state was unable to cite any examples of the “fraud” it was allegedly trying to prohibit, a striking contrast with the VRA.) When the Civil War Amendments are interpreted so as to make it easier for states to stop people from voting than for the federal government to ensure fair access to the ballot, something has gone seriously awry.

And, finally, I should say that citing the “congruence and proportionality” test isn’t much of a defense even had Roberts done so, because the test is a disaster — an extratextual standard that is subversive of the purpose of the civil war amendments and fails to give meaningful guidance to Congress.  I have no objection to “structuralist” forms of constitutional argument that infer prohibitions from the underlying purposes of various provisions, per se. But the attempt to read an implicit “state sovereignty” restriction into the provisions that empower Congress to enforce the Civil War Amendments is a bad structuralist argument because it’s plainly inconsistent with the purposes of the amendments. Inventing a rule that makes it much more difficult for Congress to enforce its power to protect civil rights than to exercise its Article I powers is perverse. And, as Shelby County also illustrates, it’s premised on an additional illogic — that statutes enforcing civil rights become unconstitutional if they work. Roberts’s argument seems premised in part on the idea that once racial discrimination has been alleviated things can only get better and never worse, a theory American history rather comprehensively disproves. There is no “Congress shall be Whig historians” clause in the Constitution, and as such Section 4 of the Voting Rights Act is well within the authority of Congress to enact and does not transgress any other constitutional boundary.

Comments (48)

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  1. liberal says:

    OT: Sorry to post personal questions here: anyone here live in Middlesex County, MA? I took a job in Lowell and need advice about towns, commuter rail, daycare…Not sure JFL is now in Lowell, though.

    • Jeff R. says:

      I live near by. Email me.

      • liberal says:

        You have an email address? Clicked on your handle but nothing’s there.

        I should probably set up an extra one myself for this purpose…

    • Marek says:

      me too

    • rea says:

      And so through the night went his cry of alarm
      To every Middlesex village and farm . . .

    • I live in Middlesex County but about 30 miles from Lowell. I used to work around there, though, so if you want 20 year old dirt about the Lowell RMV, or cheap, fast Cantonese ten miles out of town, I can help you with that.

    • joe from Lowell says:

      Lowell is your best housing value in the region – just make sure you know the neighborhood. If you’re looking to buy, check out downtown condos in mills and other old buildings.

      Don’t move to the wrong side of the river (whichever side that might be). It’s a pain to cross those bridges at rush hour.

      The commuter rail is for bringing people into Boston. It doesn’t really bring you to any of the employment centers in Lowell, or elsewhere in the region.

      If you really like the rural thing, Dunstable and Pepperell are lovely.

  2. Incontinentia Buttocks says:

    Inventing a rule that makes it much more difficult for Congress to enforce its power to protect civil rights than to exercise its Article I powers is perverse.

    To be fair to Adler, he does suggest, in comments on CT, that he would want the Court to also apply these ridiculous, invented limits to explicit Article I powers, too. And he cites the interstate commerce clause as the place these restrictions might profitably be applied (what a surprise!).

    • Scott Lemieux says:

      Ah, so the drive to overrule McCulloch gains another adherent!

      Seeing both Article I and the Civil War amendments as enacting Mr. Robert Nozick’s Anarchy, State and Utopia isn’t really the consistency I prefer, but anyway…

  3. Breadbaker says:

    Put another way, the court has no problem that people be denied the right to vote on the basis of race or color until such a point that Congress is once again justified in enforcing the 15th Amendment, despite the clear expression in section 1 that that is unconstitutional. It’s as though there is some limit not only to Congress’s power, but to the very amendment power, that Congress and the states, notwithstanding the pretty clear language of Article V (which has exactly two exceptions, one of which has been moot for over two centuries), cannot agree to transgress.

    This pretty much makes the Supreme Court the most dangerous branch.

    • James E. Powell says:

      Put another way, the court has no problem that people be denied the right to vote on the basis of race or color until such a point that “those people” stop voting for Democrats.

    • rea says:

      It’s somewhat important that we not be too defeatist here. The Court struck down the preclearance list formula enacted by Congress. The substantive provisions of the statute remain on the books, and are enforceable. Also preclearance itself remains on the books, although no jurisdictions are presently on the list. This means that it may be possible to use the act’s “bail-in” procedure to subject jurisdictions with a recent history of discrimination to preclearance. This is already being tried with Texas, on the grounds that its 2011 reapportionment was struck down as discriminatory:

      http://dallasmorningviewsblog.dallasnews.com/2013/07/could-texas-be-headed-back-onto-pre-clearance-list.html/

      • timb says:

        I saw that and was heartened. I knew there a reason I was thinking of a donation to the NAACP legal fund.

      • North Carolina says:

        Me too!

      • Mark Field says:

        Enforcing the substantive protections via individual lawsuits is unlikely to be effective. The problem is that there are infinitely many ways to discriminate. If one method gets struck down, a slightly different one can be adopted. That’s what the Southern states did in response to the NAACP’s efforts to enforce the “equal” half of Plessy’s “separate but equal” doctrine, and it’s what they later did in response to voting rights. Each lawsuit is expensive to bring, and the affected jurisdictions aren’t acting in good faith. That’s one reason Brown overruled Plessy, and it’s one reason why the pre-clearance rule was adopted.

        The “bail in” procedure might be effective, but I’m betting the current judiciary won’t allow it.

        • Jeremy says:

          What sort of justification could they have for denying the use of Section 3 to require jurisdictions to be pre-cleared for any changes to their voting procedures after they’ve been found to have been involved in deliberate discrimination? I mean, the Roberts Court can’t simply deny the 15th Amendment exists at all, right?

          • The Roberts Court says:

            Can so.

            • Royko says:

              In a startling development today the Supreme Court declared the 15th Amendment unconstitutional. Writing for the majority, Chief Justice Roberts noted, “There was a Civil War. Things got a little heated. Clearly they didn’t really mean it.”

          • Mark Field says:

            The “can so” response is about right. I mean, I’m pretty cynical about Roberts, and part of that is his willingness to use utterly bogus extra-constitutional justifications like “equal state sovereignty” to strike down Sec. 4. Lord knows what reasons he’d give for finding that it was “inappropriate” to force a jurisdiction into pre-clearance, but I’m sure he’ll have some.

          • D. C. Sessions says:

            I mean, the Roberts Court can’t simply deny the 15th Amendment exists at all, right?

            I don’t see why the Court wouldn’t have the power to reverse the prior erroneous judgment of Appomattox.

  4. DrDick says:

    Further evidence of Libertarians’ opposition to the enforcement of any rights other than property rights. I would add that the notion of “implicit ‘state sovereignty’” seems to run afoul of the supremacy clause, which clearly grants federal preeminence.

    • avoidswork says:

      …I will say VC is an interesting site, to say the least…

      Sometimes I come away informed, mostly I pity libertarians.

      • timb says:

        mostly I get abused by Libertarians, disgusted at right wing sinecures, amused by the liberal commenters who own the comment sections, appreciate their policy on commenting, and, yet, once, get banned by David Bernstein for suggesting that proto-libertarains were the planter class of the Antebellum

  5. Bill Murray says:

    Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

    While this may true in a general sense, it has no bearing on Shelby since the 15th Amendment clearly constructed an island around voting rights

    • Another Anonymous says:

      Yeah, it’s hard to isolate any one idiocy in Shelby County, but that’s so fucking obvious, it’s painful.

      Pointing out the baselessness of a SCOTUS op is not necessarily a futile exercise. The more people came to recognize that Bowers v. Hardwick rested on nothing sane, the easier it was for Lawrence to come along and overrule it. The indefensibility of Shelby County can’t be expounded too often.

    • Anonymous says:

      And you know, it’s curious to contrast this with the right’s attitude toward the constitutional right of privacy.

    • Breadbaker says:

      As I’ve said before, I can’t think of words that could have been added to the Fifteenth Amendment, which was written in light of both the Tenth Amendment and McCulloch, that Congress and the states could have agreed upon (which is what a constitutional amendment is) that could have made it more clear that the court was to keep its cotton-picking nose out of Congress’s decision on what to do to stop states from discriminating in voting on the basis of race or color.

  6. L.M. says:

    The Roberts Court’s attitude towards the Fifteenth Amendment is a bit like the Chase Court’s attitude towards the Fourteenth:

    [S]uch a construction [of the Fourteenth Amendment's Privileges and Immunities Clause] . . . would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.

    In other words, you people are acting like the Reconstruction Amendments changed the Constitution or something! And even perhaps that they were part of some fundamental change in the relationship between the federal governments and the states! That’s just crazy talk.

    • Scott Lemieux says:

      “If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage.”

  7. Joe says:

    The Windsor opinion is somewhat more defensible because unlike the 15A there isn’t a clear constitutional command overriding state sovereignty arguments & traditionally marriage was treated as a state issue so DOMA is something of a red flag there. Anyway, it ultimately relied on equal protection, since as it notes, clearly the feds had some power to regulate marriage.

    • Oh, sure. Plus, the Windsor opinion was terrible because 1)it’s Kennedy, and 2)the majority coalition plainly wanted to duck the legality of state SSM laws. Both lower courts had perfectly coherent explanations for why Section 3 was unconstitutional. The main reason Shelby County is terrible is that the arguments that Section 4 are unconstitutional are inherently terrible; it’s not like the attempts to rationalize Roberts’s opinion have been much of an improvement.

  8. J R in WV says:

    In an ideal world, when a small set of justices lose their minds and rule in an obviously biased manner to deprive a large set of people from voting rights protection clearly written into the Constitution…

    Those crazed and biased judges would be impeached and replaced with real judicially capable lawyers.

    But this is the world we have to live in. So I’m not holding my breath waiting for those incompetent anti-democracy monsters to be removed by a House controlled by other similar monsters.

  9. [...] Of course, Barnett’s analysis (which I would say is an effective overruling of McCulloch, and both he and the Court claim is just a narrower reading of Marhsall’s essential holding) got five votes from the Supreme Court in Sebelius. In particular, Roberts’s argument that “[e]ven if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective” tracks Barnett’s analysis almost perfectly (not surprisingly, since Barnett was the architect of the legal challenge.) And while I don’t know if Barnett himself endorses its application to Section 2 of the 15th Amendment, Roberts’s use of the “appropriate” qualifier to impose an ill-defined narrow tailoring requirement on Congress in Shelby County is a similar kind of argument. [...]

  10. [...] counts these days), have any conservative law professors criticized Shelby County? Jonathan Adler stopped short of endorsing it but didn’t criticize it, either. I can’t think of any others. Have there been other [...]

  11. [...] “congruence and proportionality” test: the opinion is in such risible shambles that it doesn’t bother explaining what standard is being used to evaluate congressional authority under the 15th Amendment at all. [...]

  12. [...] Shelby County:  initial reaction, and further refinements here and [...]

  13. Another Anonymous says:

    Lie back and enjoy it!

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