GUEST BLOG: Judicial Hubris

By William Yeomans, 

Fellow in Law and Government at American University 

Washington College of Law

In the majority opinion today in Shelby County v. Holder, the five conservative members of the Supreme Court continued their assault on remedies for racial discrimination.  The Court held unconstitutional Section 4(b) of the Voting Rights Act, which is the formula for determining which jurisdictions are required to seek advance approval of voting changes pursuant to Section 5 of the Act.  

William Yeomans

Section 5, first enacted in 1965, has been widely praised as the single most effective civil rights law.  The coverage formula captured primarily the states of the Deep South where minority voters had been brutally and effectively denied the franchise since Reconstruction.  It subjected covered jurisdictions to a requirement that they prove to the Attorney General or a three-judge federal court that proposed election changes would not have the purpose or effect of discriminating on the basis of race.

The law was first enacted in 1965 and reauthorized in 1970, 1975, 1982, and 2006.  In 2006, Congress held numerous hearings and compiled a massive legislative record supporting reauthorization.  It showed that there had been improvement in some aspects of voting, but that discrimination persisted in ever evolving forms.  Congress made the judgment that lifting Section 5 would be premature and would likely leave Section 5’s job unfinished.

With stunning arrogance, the Court’s conservative majority dismissed the efforts of Congress, moving Justice Ginsburg to say in dissent: “Hubris is a fit word for today’s demolition of the VRA.”  The majority barely engaged with the massive record Congress developed, instead picking out selected facts to support its conclusion that conditions had changed sufficiently that Section 5 could no longer be tolerated. 

The majority’s decision registers disdain for the power of Congress.  The Voting Rights Act was enacted pursuant to the Fourteenth and Fifteenth Amendments.  The Fifteenth Amendment prohibits discrimination in voting on account of race and states:  “The Congress shall have power to enforce this article by appropriate legislation.”  The Fourteenth Amendment similarly empowers Congress.  In passing legislation to protect the right to vote against racial discrimination, Congress acted at the height of its powers.  Yet, the majority ran full tilt over Congress in its rush to strike down the law.  It substituted its judgment for that of Congress, unfazed that Congress had reauthorized the statute by a unanimous vote in the Senate and an overwhelming vote in the House.

In doing so, it seemed to elevate a previously non-existent notion of the “equal sovereignty” of the states over the rights of individual minority voters, who had long been the victims of state action.  The Court had previously rejected the applicability of the doctrine to Section 5 when it first upheld the law in 1966.

By striking down only Section 4(b) and leaving the preclearance requirement of Section 5 in place, the Court largely gutted Section 5, but explicitly left open the possibility that Congress could enact a new coverage formula.  Given the difficulty the current Congress has in passing major legislation, the Court’s opponents of the law may have felt safe making their offer, and instant commentators have been quick to note the difficulty of passing such legislation. 

Yet, there are strong reasons for Congress to respond with a bipartisan enactment.  First, protecting the right of all eligible people to vote should and must be a priority for members of both parties.  Second, Republicans and Democrats should be concerned about the slap in the face that the Court delivered to Congress.  It is incumbent on Congress to step up and reassert its authority to make law.  Finally, we are now seeing in the movement of the immigration bill that bipartisan action in the Senate is still possible when both parties perceive that it is in their interest.  Many in the Republican Party understand that they cannot continue to be seen as the party that opposes the interests of Latino and other minority voters if the party hopes to remain competitive.  That same instinct should lead some to support a bipartisan effort to fill the gaping hole that the Supreme Court blew in our voting rights laws.  

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

Read More:
--AFJ's statement in response to today's decision
--AFJ Audio Analysis, with excerpts from the oral arguments. 
--More about the Voting Rights Act

GUEST BLOG: Affirmative action lives to fight another day

By William Yeomans, 
Fellow in Law and Government at American University Washington College of Law

The long awaited decision in Fisher v. University of Texas emerged from the Supreme Court today with a reassuring whimper.  The Court’s 7-1 decision (Justice Kagan was recused) leaves the law of affirmative action unchanged and, importantly, reaffirms that its prior decisions allowing consideration of race in university admissions remain good law.  Only Justice Ginsburg dissented from the majority’s holding that the lower courts had not sufficiently applied strict scrutiny.  She argued, correctly, that the University’s consideration of race was appropriate.

William Yeomans

The University’s undergraduate admissions program sought to create a diverse student body in two ways.  First, it admitted all applicants who finished in the top ten percent of their high school classes.  This program was adopted after a 1996 decision by the 5th Circuit Court of Appeals rejected the notion that race could be considered as a factor in achieving a diverse student body.  Before that decision was superseded by the Supreme Court’s 2003 decision in Grutter v. Bollinger, Texas adopted its ten percent plan, knowing that taking the top students from the state’s segregated schools would increase diversity.  To fill the remaining 20 percent of the places for the incoming class, the University took into account a variety of factors, such as grades, SAT scores, socio-economic measures, legacy, and race.  The Fisher case challenged the use of race in this second pool of applicants.

The court reaffirmed that it is appropriate for universities to take race into account to achieve a diverse educational environment.  It emphasized, however, that the use of race must be narrowly tailored and found fault in the lower court’s reliance on the “good faith” of the university in determining that there were no adequate race-neutral means of achieving comparable diversity.  Importantly, rather than reverse and hold that the university could not consider race, the Court merely sent the case back to the 5th Circuit to revisit the availability of race-neutral alternatives.  Theoretically, the lower court is free to affirm its earlier holding.

Because the case was decided on motions for summary judgment, there was no trial for the development of facts.  The availability of race-neutral alternatives is an issue of fact.  The 5th Circuit, therefore, can credibly remand the case to the district court for development of the record on the issue, including the taking of testimony on the effectiveness of alternatives.  The district court’s decision could then be appealed to the 5th Circuit and could eventually return – in the distant future – to the Supreme Court.

The case was argued in October.  The issuance of the decision only today reflects the deep disagreement among the Justices over the issue of affirmative action.  Justices Scalia and Thomas wrote separately to make clear that they joined the majority’s opinion only because Fisher did not urge the Court to overrule Grutter and disallow consideration of race altogether.  Based on past decisions, it is likely that Chief Justice Roberts and Justice Alito share that view.  Presumably, they had hoped to get Justice Kennedy to join them, but he held fast to his repeated refusal to take race off the table entirely.  Unfortunately, he also held to his pattern of never approving a program that considered race.

The decision – even in its compromised form – highlights how misguided the Court’s jurisprudence on inclusive racial classifications has become.  The opinion is filled with rhetoric about the evils of considering race, regardless of the purpose.  Helpfully, Justice Ginsburg pointed out that the Court had no occasion to address the distinction between racial classifications that separate and those that are inclusive.

By contrast, Justice Thomas, in his concurrence, was incapable of distinguishing between the Jim Crow exclusion of African Americans from public schools and the University of Texas’s program to increase diversity.  According to Thomas, “every time the government . . . makes race relevant to the provision of burdens or benefits, it demeans us all.”  In reality, of course, many people, including Justice Thomas, have benefitted from appropriate consciousness of race and some of them have made our society a far better place because of it.  It is essential that the Court never gets a fifth Justice who rejects that view.

In the meantime, it will be incumbent on university administrators to continue the push to create diverse institutions that will move us toward a more just, inclusive and productive society.  Today’s decision should not slow that effort.

William Yeomans is a Fellow in Law and Government at American University's Washington College of Law.

Help protect the Voting Rights Act – and find out what happened during the arguments

One week from today, the Supreme Court hears oral arguments in a case challenging a crucial provision of the Voting Rights Act of 1965.  That provision, known as Section 5, requires certain jurisdictions to obtain advance approval from the Justice Department or a federal court before they change voting rules or procedures.

The Voting Rights Act was, and remains, the keystone in the arch of civil rights protection for people of color.  As our overview of the issues makes clear, that provision is needed now as much as ever.

FEB. 26: TWITTER TOWN HALL

On the day before the case is heard, join in a Twitter Town Hall about the Voting Rights Act.

FEB. 27: RALLY AT THE COURT

AFJ is part of a coalition working to protect the Voting Rights Act. Those efforts include a rally in front of the Supreme Court at 9:00 AM. AFJ President Nan Aron is among the scheduled speakers.  Get the details here.

FEB. 27: ANALYSIS ON JUSTICE WATCH

Then, in the hours after the argument, check back here at Justice Watch for comprehensive analysis. Legal experts will be posting here about key issues raised by the case, including:

• Whether the jurisdictions covered by Section 5 still need to be covered.
• Whether the geographic reach of the statute is justified.  Does it include too many places?  Does it include too few places?
• What has happened since the Court last took up the Voting Rights Act in 2009?
• What deference should the Court give to congressional findings of fact?

Guest bloggers include Prof. Franita Tolson of Florida State University, Prof. William Yeomans of American University and Prof. Bertrall Ross of the University of California Berkeley School of Law.

If the Supreme Court makes audio of the oral arguments available in time, we'll include relevant excerpts with the Blog posts.