And I’ll Show Them By Destroying It!

It is the first of January and already we have a strong contender for “Least Self-Aware Comment of the Year”:

As the country faces unprecedented rancor between the branches of government in the midst of impeachment proceedings, Chief Justice John Roberts urged his fellow federal judges Tuesday to promote confidence in the judiciary and maintain the public’s trust. Americans, Roberts said, have in the modern era come to “take democracy for granted,” and the chief justice lamented the fact that civic education has “fallen by the wayside.” “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital,” Roberts wrote in his annual report on the state of the judiciary, issued each New Year’s Eve.

“The problem with American democracy isn’t reactionary judges actively undermining American democracy, it’s the public not giving uncritical deference to reactionary judges!”

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.

—Shelby County v. Holder (2013), Ginsburg, J. (dissenting)