Courtly Politics

Posted on Jun 24, 2009

By E.J. Dionne

    The United States Supreme Court claims to be above politics, and it sometimes even achieves that aspiration.

    The court has occasionally solved problems that the more conventionally political branches of government have allowed to fester, and oppressed minorities have periodically been able to use the court to vindicate their rights.

    But far more than we want to admit, the justices of the Supreme Court reflect the country’s competing political tendencies and often reach their decisions not through the exercise of Platonic reason rooted in a careful analysis of the Constitution but by way of raw political bargaining. 

    The court’s ruling this week on the constitutionality of the Voting Rights Act will go down as a classic in the history of judicial logrolling. The court avoided catastrophe through a second-best decision that leaves the core issues raised by the case undecided.

    The catastrophe would have been a ruling invalidating Section 5 of the act requiring eight states (six of them in the South), most of Virginia, and dozens of jurisdictions elsewhere to obtain Justice Department approval (“preclearance”) before changing their voting laws.

    The act, first passed in 1965 and renewed since, has been a magnificent success. It ended overt and covert efforts to disenfranchise minority voters that were once routine, particularly in the segregated South, and thereby transformed American society.

    Civil rights advocates feared that a 5-4 conservative majority on the court was ready to strike down the heart of the act, so there was elation this week when by a vote of 8-1 the court allowed that section to stand.

    The bad news is that the decision left open the possibility that the section would someday be overturned. That is as clear a reminder as anyone should need that the political and philosophical proclivities of future court appointees truly matter.

    Chief Justice John Roberts has gotten credit for living up to a principle he said he would espouse regularly but has often ignored: that the court should be minimalist, making its decisions on the narrowest possible grounds. And, as he wrote in the Voting Rights Act decision, “avoid the unnecessary resolution of constitutional questions.” 

    Roberts deserves one cheer, but no more. In a case brought by a Texas municipal utility district with an elected board that thought it should be allowed to escape Section 5 restrictions, the chief justice let the utility district bail out without raising large legal questions. But his ruling strongly hinted that he would have preferred to overturn the section altogether.

    While acknowledging the past achievements of the Voting Rights Act, Roberts asserted that “past success alone ... is not adequate justification to retain the preclearance requirements.” He also claimed that “considerable evidence” suggested that the statute “fails to account for current political conditions.”

    Reading between the lines, Pamela Karlan, a Stanford Law School professor and one of the country’s leading voting rights experts, concluded that Roberts tried and failed to put together a majority for gutting Section 5.

    “What the decision indicates is that the conservative wing of the court didn’t have five votes,” she said in an interview. “I don’t think this was a minimalist decision. I think it’s a compromise decision because there are five justices who didn’t want to strike down the act.” 

    What’s likely is that one or two conservative justices (probably Anthony Kennedy and possibly Samuel Alito) realized that overturning an act of Congress simply because a narrow court majority decided it was outdated would be rightly seen as an outrageous form of judicial activism.

    Moreover, as Karlan notes, the Voting Rights Act has earned iconic status in American law as “one of the few acts in American history that was the product of a truly mass mobilization.” Ripping out the statute’s heart would have carried “a clear political cost to the court.” Yes, you can bet the court pays attention to politics. 

    Roberts’ opinion has been widely interpreted as an invitation to Congress to rewrite the Voting Rights Act, though he gave few hints as to what changes in the law would assuage his doubts. In fact, it’s quite common for the court to push Congress to alter legislation—which further underscores the profoundly political nature of the one branch of government supposedly immune from politics.

    To use a hallowed line now freighted with sexism, we remain a government of laws, not men. But men and women have political views and philosophical orientations that do not evaporate on the day they become Supreme Court justices. Pretending otherwise will do nothing to preserve our liberties.

    E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.

    © 2009, Washington Post Writers Group

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