… and you could drive a Hummer through it as long as you kept the wipers going to clear the windshield of blood. Stevens doesn’t just mock Roberts’s “fundamental principle of equal sovereignty among the States,” he demonstrates that at no time in U.S. history has it existed anywhere outside John Roberts’s rear end. (Yet the Court majority in Shelby County are all, all honorable originalists.)
The statistics set forth in Roberts’s recent opinion persuasively explain why a neutral decision-maker could reasonably conclude that at long last the imposition of the preclearance requirement on the states that lost the Civil War—or more precisely continuing to use the formula that in 1965 identified those states—is not justified by the conditions that prevail today. The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.
The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.
In her eloquent thirty-seven-page dissent, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, described the extensive deliberations in Congress over the preclearance requirement, the precedents holding that the Court has a duty to respect Congress’s decisions, and the reasons why the preclearance remedy should be preserved. Indeed, she captured the majority’s principal error concisely and clearly when she explained that “throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
I hope everyone who wrote all the crap about Roberts being concerned about his Court’s place in history after it upheld the Affordable Care Act will now take it back, but I’m not optimistic.