Principled Judicial Restraint: A Case Against Activism

A Case Against Activism

Jerold Waltman

• Publisher: Palgrave Pivot
• Year: 2015
• Print ISBN: 9781137490650
• eBook ISBN: 9781137486967
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

Like many books, this one argues for a more restrained Supreme Court. Unlike most other books, however, this one grounds that call in a fully elaborated constitutional theory that goes beyond the "counter-majoritarian difficulty."

1

Where We Are Now

Abstract: Two Supreme Court cases from June 2013 Shelby County v. Holder and Windsor v. United States aptly illustrate what is wrong with the contemporary Court. Both were decided by 5–4 votes, and both overturned important pieces of federal legislation, the Voting Rights Act and the Defense of Marriage Act, respectively. In both cases, impassioned and logically coherent dissents argued for judicial restraint, by Justice Ruth Bader Ginsburg in the first case and by Justice Antonin Scalia in the second. But both justices blatantly ignored the axioms from their dissents in the other case. What is badly needed today is a constitutional theory that will point toward consistent and principled judicial restraint.

Waltman, Jerold. Principled Judicial Restraint: A Case Against Activism. New York: Palgrave Macmillan, 2015. DOI: 10.1057/9781137486967.0003.

June 2013

In the last week of June 2013 the Supreme Court handed down two important decisions: one, Shelby County v. Holder,¹ declaring unconstitutional critical portions of the Voting Rights Act and the other, United States v. Windsor,² overturning the federal Defense of Marriage Act. Both decisions divided the Court 5–4, and both majority opinions triggered impassioned dissents. Moreover, both decisions were greeted publicly by cheers—conservatives in the first case and liberals in the second—and heated criticism—with the sides vice versa. Both cases, I would argue, aptly illustrate what is wrong with the contemporary Court.

The Fifteenth Amendment, passed in the wake of the Civil War and Reconstruction, provides in Section 1 that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” This is followed by Section 2, which says that “The Congress shall have power to enforce this article by appropriate legislation.” The amendment’s drafters thus envisaged a dual enforcement mechanism: On the one hand, individuals could bring suits against government officials who might deny them the right to vote. Inasmuch as states control voter registration and make rules for the conduct of elections, such suits would most likely be launched against states and their officers. Alternatively, Congress could adopt legislation designed to end racial discrimination in voting, and its dictates would override state regulations.

While some efforts were made to enforce voting rights in the years immediately following the amendment’s ratification in 1870, before long state governments in the South fell into the hands of largely unreconstructed whites, who quickly set about finding ways to disenfranchise black citizens. While such tactics were to be found throughout the states of the former Confederacy, they were especially prevalent and especially effective in the Deep South. The ardor for racial equality having cooled in the North, Congress had little appetite for enforcement legislation. It was left, therefore, for individual plaintiffs to bring suits. The problem was that even if such a suit were successful, it only resulted in the registration of one voter. For all practical purposes, the amendment had become dormant.

Spurred by the emerging civil rights movement, Congress passed some anemic voting rights legislation in 1957 and 1960, the main thrust of which was to make it easier to file suits under Section 1. The landmark Civil Rights Act of 1964 also contained a voting rights section, but that statute’s main focus was on public accommodations and employment. In the mid-1960s there was still pervasive discrimination throughout the South when it came to registering to vote. “Literacy” tests (typically administered in a grossly unfair fashion), good character tests, “understanding” requirements (whereby an applicant was called on to explain parts of the Constitution, for example), irregular and limited hours of opening for county offices, disqualifications for small errors on forms, and a myriad of other techniques—to say nothing of outright intimidation—kept all but a determined handful of African-Americans off the voting rolls. For example, in 1965 only six percent of eligible black citizens were registered to vote in Mississippi.

When state police attacked peaceful voting rights marchers on the Edmund Pettus Bridge in Selma, Alabama in 1965, it galvanized the public and Congress into action. President Lyndon Johnson pushed for and Congress enacted the Voting Rights Act of 1965 (VRA). Although the statute contained a number of provisions, for present purposes the most important ones were found in Sections 4 and 5. Section 4 spelled out the specific parts of the country to which the VRA would apply by use of a special formula. The covered jurisdictions, of course, lay mostly in the South.³ Within these jurisdictions, it banned the use of a wide variety of devices traditionally used to hamper black registration; and even under some conditions placed federal registrars in those areas armed with the legal power to register people directly. Section 5 required that all the covered jurisdictions obtain “preclearance” either from the Department of Justice or a three-judge federal court in Washington for any change in voting rules or regulations that might have “the purpose or effect of denying or abridging the right to vote on account of race or color.” South Carolina and other southern states immediately challenged the constitutionality of the law, but the Supreme Court unanimously brushed their objections aside in South Carolina v. Katzenbach.⁴ The legal question, put simply, was whether Congress had exceeded its powers under Section 2 of the Fifteenth Amendment and intruded into areas constitutionally reserved to the states. According to Chief Justice Earl Warren, who wrote the opinion for the Court, “The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” He buttressed this with a familiar quotation from John Marshall’s opinion in McCulloch v. Maryland.⁵ “Let the end be legitimate . . . and all means which are appropriate . . . which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

The VRA was set to expire in five years, but it was periodically renewed, for five more years in 1970, for seven years in 1975, then for 25 years in 1982 and 2006. Moreover, several new jurisdictions were brought within its sweep. Meanwhile, the courts wrestled with a variety of complex issues (such as to which elections—for example, those for judges—it should apply and under what conditions minority voters were facing dilution of their votes). At no point, though, was the constitutionality of the act itself subject to question, until 2009. At that time, a Texas utility district had applied for a “bailout” (allowed under certain conditions in Section 5) from the law.⁶ Chief Justice Roberts, writing for the Court, hinted strongly that changed conditions were leading the justices to be skeptical of the continued need for the law. Only the pervasive and open discrimination that characterized the era in which the law was initially enacted “justified extraordinary legislation otherwise unfamiliar to our federal system. . . . [W]e are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.” Not today, perhaps, but hardly anyone could read this and not know that he seemed eager to decide it tomorrow.

Shelby County Alabama, most of which contains southern suburbs of Birmingham, filed a request with the Department of Justice to make certain changes to its voting rules. The Department objected, and in response the county filed a suit claiming that the coverage formula under Section 4 was unconstitutional. A federal district court supported the federal government, a ruling that was upheld by the Court of Appeals. Appeal was then made to the Supreme Court. The case split the Court 5-4, and Chief Justice John Roberts took the opinion for himself, supported by Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy.

Roberts begins the argumentative section of his opinion by citing two principles gleaned from the utility district case: (1) that Congress had to justify “current burdens” on the states by “current needs” and (2) that a strong showing was necessary to deviate from the proposition that all states must be treated equally. At the outset, he noted the fact that a general power for the federal government to overturn state laws was considered at the constitutional convention but rejected. (The relevance of this is that he seems to view Section 4 of the VRA as resurrecting a version of this procedure.) He also stresses that, excepting the supremacy clause (Article VI), states retain broad legislative discretion, and that their power in the area of elections is especially pronounced. Furthermore, he finds in the Constitution an axiom of fundamental equality for the states. Interestingly, the case he cites for support of this proposition, he admits, concerned only the admission of new states and that Katzenbach explicitly rejected its applicability to other contexts. Nevertheless, he declares that “the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.” The VRA, he next says, “sharply departs from these basic principles.” He then takes some wording that Chief Justice Warren inserted in 1966 almost as a parenthetical comment and elevates its importance. Warren said that certainly the VRA could be seen as “an uncommon exercise of congressional power,” but that “legislative measures not otherwise appropriate” were warranted under “exceptional circumstances,” as everyone knew existed in the South.

With this tilted framework in place, Roberts then embarks on a survey of the empirical support for his coming conclusion. He wades into the data on voter registration, comparing conditions in 1966 with those prevailing in 2004, even offering a helpful chart showing that the white/black disparities have all but disappeared, and, further, that in some instances black registration percentages exceed those of whites. He concedes that the gains in registration (and officeholders) have largely been because of the VRA, but says that under that theory, it could never be unconstitutional.⁷ He pushes the point that “history did not end in 1965,” and that Congress must justify the current version of the act with current data, not “decades old data and eradicated practices.” Contrary to what Roberts says here, in fact, Congress compiled a rather extensive report on current conditions, but Roberts contends that even if that were true, “it played no role in shaping the statutory formula before us today.”

In short, Congress did not collect enough currently pertinent data to justify the extraordinary character of the VRA, and what data it had it did not employ with sufficient rationality to make the statute defensible. “Our country,” he concluded,” has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” He might have added “as defined by the Supreme Court.”

Justice Ruth Bader Ginsburg penned a logically tight, passionate, and convincing 37-page dissent joined by Justices Stephen Breyer, Sandra Sotomayor, and Elena Kagan. Her first paragraph sets the basic framework for her position:

In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.

She begins by reviewing the unhappy history of voting discrimination and the early anemic efforts to combat it. Moving to the passage and success of the VRA, she nonetheless points out that “discrimination against the exercise of the franchise by minority citizens” has by no means disappeared. At the moment, although outright denial of the right to register to vote has all but been eliminated, in many jurisdictions “second generation” barriers—such as redrawing districts to dilute minority voting strength and setting up burdensome reregistration requirements that fall disproportionately on minority voters—are still prevalent.

Before it voted on the 2006 reauthorization of the VRA, Congress compiled an exhaustive record—running to 15,000 pages of reports, studies, and testimony—of these abuses. When it came time to vote, the House passed the measure 390–33; soon thereafter the Senate endorsed it 98–0. Put simply, she says, “The question before the Court is whether Congress had the authority under the Constitution to act as it did.”

“It cannot tenably be maintained,” she declares, “that the VRA . . . is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution.” She then proceeds to analyze the history of the Civil War amendments and their dua...

Table of contents

• Cover
• Title
• 1  Where We Are Now
• 2  How We Got Here, Part 1: From the Old Activism to the Warren Court
• 3  How We Got Here, Part 2: The Rise of Conservative Judicial Activism
• 4  A Constitutional Theory of Judicial Restraint
• 5  Objections
• 6  Conclusion
• Bibliography
• Index