· CHAPTER 20 ·
Race Matters
Two of the most contentious race-conscious measures of the racially freighted Obama years hit the Court’s docket in 2013—affirmative action and voting rights. Ginsburg at eighty would once again prove capable of delivering the judicial equivalent of a body slam at a time when the Court’s conservatives seemed bent on denying equal protection to minorities.
In fact, she had found her voice in a dissent ten years earlier in two cases involving affirmative action in higher education. Both originated at the University of Michigan (UM). In the 1990s, the university had actively pursued diversity through fellowships for black, Hispanic, and Native American students and minority-studies programs in order to raise the percentage of underrepresented minorities at the state’s premier university. The administration’s efforts succeeded. They also raised the ire of white parents whose children were being rejected, especially after a request filed with the Freedom of Information Act made public the university’s affirmative-action policies.
Grutter v. Bollinger challenged the admissions policy used by the prestigious Law School on the Ann Arbor campus, while Gratz v. Bollinger disputed the policy used by the undergraduate College of Literature, Science, and the Arts. When O’Connor cast her vote with the liberal minority in Grutter, Ginsburg breathed a sigh of relief. The kind of forward-looking admissions policy endorsed by business and military leaders in their amici briefs would continue. The Law School, wrote O’Connor, could maintain its narrowly tailored race-conscious policy. Minority status was but one of several factors contributing to a “diverse and academically outstanding” class. Training society’s future leaders from varied racial, social, and economic backgrounds promoted “a compelling state interest.”
Ginsburg had anticipated that the narrow victory achieved by the Law School in Grutter would not be repeated in Gratz. The university’s Office of Undergraduate Admissions compiled scores for each applicant based on the applicant’s grade point average and five additional factors: the quality of the applicant’s school; the strength of that school’s curriculum; any unusual circumstances in the applicant’s life; geographic residence; and alumni relationships. These scores were plotted on four separate grids: (1) in-state nonminority applicants; (2) out-of-state nonminority applicants; (3) in-state minority applicants; and (4) out-of-state minority applicants. Controversy had arisen over the lower standards applied to the preferred minority applicants. Two students with identical credentials would receive different results: the nonminority student would be rejected, while the preferred minority student received an acceptance.
Jennifer Gratz, the daughter of a policeman, had applied in 1997, along with 13,500 other high school seniors. The university could accept only 4,000 students—only 29.6 percent of those applying. Her application rejected, she filed a reverse discrimination suit against the university with the help of the conservative Center for Individual Rights.
In 1998, UM had discontinued its admissions grid system, replacing it with a “selection index.” In order to create a diverse freshman class, the college adopted a point system that awarded points for grades, test scores, strength of the high school, quality of courses of study, place of residence, alumni relationships, personal character, the quality of the personal essay, socioeconomic disadvantage, athletic ability, and minority status.
Applications of underrepresented minorities automatically received 20 points on the 150-point scale as part of the university’s efforts to admit a critical mass of minority students. While the percentage of minority students varied from year to year, it needed to be enough to avoid tokenism and isolation. A nonminority candidate who scored highly in other categories could easily accumulate more points than a minority applicant, as Ginsburg would point out. Nevertheless, the bonus proved fatal in the eyes of the Court’s more conservative members.
In the Gratz oral argument, O’Connor took a dim view of the college’s mechanized review process, as had Kennedy, who said it looked like “a disguised quota.” Without an individualized review of each application like that provided by the Law School, the majority agreed that the undergraduate admissions policy was not tailored narrowly enough. The automatic 20-point bonus given to underrepresented minority applicants, Rehnquist wrote, had the effect of making “the factor of race…decisive,” thereby violating strict scrutiny.
A disappointed Ginsburg issued a classic dissent, which Justice Souter joined. Taking issue with the Court’s insistence that the same standard of review controls scrutiny of all official race classifications, she pulled no punches. “This insistence on ‘consistency,’ ” she wrote, “would be fitting were our Nation free of the vestiges of rank discrimination reinforced by law….But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities.” Pointing out that large racial disparities continue to exist in employment, income, access to health care, and education, she cited data demonstrating that schools attended by almost three-fourths of black and Latino children were “poverty-stricken and under-performing institutions….‘Bias both conscious and unconscious…must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.’ ”
Equal protection, Ginsburg insisted, required permitting government decision makers to “properly distinguish between policies of exclusion and inclusion.” “Actions designed to burden groups long denied full citizenship stature” are not equivalent to “measures taken to hasten the day when entrenched discrimination and its after-effects have been extirpated….To pretend…that the issue presented in [Bakke] was the same as the issue in [Brown] is to pretend that history never happened and that the present doesn’t exist.”
Acknowledging that “the mere assertion of a laudable governmental purpose…should not immunize a race-conscious measure from careful judicial inspection,” she highlighted three points about the University of Michigan undergraduate admissions policy. First, the racial and ethnic groups to which the college was providing special consideration, she noted, “historically have been relegated to inferior status by law and societal practice; their members continue to experience class-based discrimination to this day.” Second, there was no indication that the college adopted its current policy in order to limit any particular racial or ethnic group, and no places were reserved on the basis of race. Third, there was also no evidence that the college’s admissions policy unduly restricted opportunities of students who did not receive the special consideration based on race. “The stain of generations of racial oppression is still visible in our society,” she concluded, “and the determination to hasten its removal remains vital.”
Ginsburg’s efforts to preserve race-conscious remedies had proven far more difficult once Roberts and Alito joined the Court. Former “foot soldiers” in the anti-affirmation-action crusade of the Reagan administration, they voted in race-related cases accordingly. “The whole point of the Equal Protection Clause,” Roberts would famously declare, “is to take race off the table.” Kennedy was less antagonistic to minority considerations than his four conservative colleagues; however, he lamented the relaxed application of strict scrutiny that O’Connor had applied in Grutter. Rigorous scrutiny, he insisted, must be applied to assure the majority of the fairness of the application process.
With possibly five justices opposed to affirmative action—a view that appeared to be widely shared by three-quarters of the American population—conservative advocacy groups had moved quickly. None proved more effective than the Project on Fair Representation, a one-man operation of Edward Blum, a former Texas stockbroker whose passion had become fighting race-based policies in the courts. Shortly after Grutter, Blum had discerned an opportunity at his alma mater, the University of Texas (UT).
UT, like other universities in the South, had closed its doors to African Americans as late as 1950, when the Court forced the Law School to admit Heman Marion Sweatt. Affirmative-action policies followed in the 1970s. However, as the color-blind “consistency” gathered steam, the conservative Fifth Circuit in New Orleans had rejected the university’s race-conscious admissions policy in 1996. The enrollment of black students plunged from 5 percent to 2 percent of the student body. In response, the state legislature instituted a nominally race-neutral policy that automatically admitted students graduating in the top 10 percent of their high school class to a state university, although not necessarily to the institution designated as their first choice.
Under the Top Ten Percent policy, African American students admitted to the flagship campus at Austin came primarily from impoverished, segregated schools and neighborhoods. As the university’s own surveys revealed, many understandably felt isolated, complaining that they were often the sole black student in a class. Once Grutter was decided in 2003, UT officials concluded they could do better, modifying the admissions process a year later. The underlying objective of the new policy was to admit African Americans from more privileged socioeconomic backgrounds in order to create greater variety in experience among black students and more future leaders for the state.
Admitting the top 10 percent of high school graduates still accounted for 80 to 90 percent of the in-state admissions for an entering class. For the limited number of places left, admissions officers reviewed each application individually, using two scores. The first allotted points on the basis of grades and SAT scores. The second, called a personal achievement index, awarded points for two required essays, activities, service, and “special circumstances.” Under the new plan, black enrollment climbed back to 5 percent, where it had previously been under affirmative action. The university also committed itself to self-assessments every five years to determine whether minority consideration was still needed.
Yet any degree of race consciousness in admissions was too much for Blum and his financial backers. Casting about for a plaintiff, he learned that Abigail Fisher, the daughter of a friend, had been denied admission to the class of 2008 at the flagship Austin campus. Having failed to graduate in the top 10 percent of her high school class in the highly affluent, fast-growing Houston suburb of Sugar Land, the strawberry blonde claimed in a YouTube video (posted by Blum) that students with lower grades than she had been accepted. “[T]he only other difference between us was the color of our skin.”
In fact, the university had offered provisional admission to forty-seven students with lower test scores and grades than Fisher’s, and only five of them were African American or Latino. Left unsaid by her supporters was that UT had also turned down 168 black and Latino students with grades as good as or better than Fisher’s. She was also offered admission to the Austin campus in her sophomore year if she achieved a 3.2 GPA at another Texas university.
Blum was still convinced that he had the right plaintiff. He quickly secured Bert Rein from the powerhouse Washington law firm Wiley Rein to represent Fisher in an equal protection suit against the University of Texas. When Fisher lost her case in the district court and again in the U.S. Court of Appeals for the Fifth Circuit, Rein filed a petition to the Supreme Court in 2011. The university protested that Fisher lacked standing because she had already graduated from another university in Louisiana and thus no longer had anything at stake in the case.
Conservatives on the Court granted a hearing, much to Ginsburg’s dismay. To show such solicitude for the hurt suffered by Abigail Fisher while at the same time refusing to hear a case on racial profiling by the police—a practice that adversely impacted the lives of minorities on a daily basis—provided yet another example of how the right-leaning majority prioritized a conservative agenda at the expense of African Americans and Latinos.
Oral argument was set for October 2012. The importance of the case was underscored by the presence of the retired justices O’Connor and Stevens in the audience. When the justices took their seats, Kagan was notably absent. Having dealt with the case as solicitor general, she felt obliged to recuse herself. The remaining liberals—Ginsburg, Sotomayor, and Breyer—began questioning Rein. Precisely what about the current Texas policy failed to conform to the requirements set forth in Grutter? Rein claimed to have no problem with the race-neutral Top Ten Percent Rule. However, he saw no need for the personal achievement index used by the Austin campus. Race, he insisted, had become an “independent add on.” Kennedy essentially agreed, asking Rein, “Are you saying that you shouldn’t impose this hurt or this injury, generally for so little benefit?”
When Gregory Garre, a former solicitor general in the George H. W. Bush administration, rose to respond for the University of Texas, Roberts and Scalia immediately jumped in with questions designed to make the university’s commitment to diversity look absurd. “Should someone who is one-quarter Hispanic check the Hispanic box or some different box?” Roberts asked. “What about one-eighth?” he persisted. Scalia piled on. Alito, returning to the question of “critical mass,” asked what percent of the student body would have to be African American. Garre avoided the trap, aware that any figure he might have offered would be interpreted as an illegal quota. When the hour ended, it seemed clear that at least four justices, possibly five, were searching for a way to either eviscerate or overrule Grutter, dispensing with affirmative action altogether.
Nine months passed with no word on the decision, inviting speculation about bitter divisions. As drafts circulated among the justices, an impassioned dissent from Sotomayor, fully backed by Ginsburg, caused Kennedy to rethink how far he was willing to go in overturning Grutter. As the term neared an end, a compromise was finally brokered that Sotomayor and Thomas could accept. (Thomas, like Sotomayor, was a beneficiary of affirmative action, but the two held polar opposite views of its value.)
Sidestepping the decisive victory sought by Blum and other opponents, the majority voted to toughen the level of strict scrutiny courts applied. Fisher was sent back to the lower courts to reconsider. Writing for the seven-member majority, Kennedy stipulated that colleges and universities must demonstrate that “available, workable race-neutral alternatives” do not suffice before taking race into account. Courts reviewing affirmative-action programs must also conduct “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” His sparse opinion offered no guidance for how this was to be done.
Breyer believed that the Court’s minority had dodged a bullet, as indeed it had. Ginsburg, however, was supremely frustrated by her inability to persuade the Court to speak candidly in discussing the many forms discrimination takes. Issuing a lone dissent, she took exception to Kennedy’s “Janus-faced logic” of allowing colleges and universities to value racial diversity yet tightening even further the requirements for taking race into account. Because the admissions policy at the Austin campus conformed both to Harvard’s plan, which Powell had pronounced exemplary in Bakke, and to that of the University of Michigan’s Law School in Grutter, there had been no reason for the Court to take this case in the first place, she reasoned. She also took a swipe at the sophistry of the petitioner and her lawyer, who argued that the race-neutral Texas Top Ten Percent Rule and a race-blind holistic review of each applicant were the only alternatives available to the university. “I have said before and reiterate here that only an ostrich could regard these supposedly neutral alternatives as race unconscious. As Justice Souter observed in his Gratz dissent, the vaunted alternatives suffer from ‘the disadvantage of deliberate obfuscation.’ ” Quoting directly from the legislature’s own analysis of the Top Ten Percent Rule, Ginsburg pointed out that the plan had been adopted “with racially segregated neighborhoods and schools front and center stage.”
Abigail Fisher and Edward Blum outside the Supreme Court after oral arguments in Fisher v. Texas in October 2012.
Reading her dissent from the bench at the end of the term, Ginsburg underscored her dismay at the Court’s further retrenchment in race-conscious remedies. When the Fifth Circuit again ruled in favor of the University of Texas, Rein appealed. The conservative justices put Fisher back on the docket for review in 2016, confident that next time they would secure the vote they wanted with a little help from Kennedy. If they succeeded, it would mean a reduction of the number of black and Latino students at nearly every selective college and graduate program in the United States, with more white and Asian American students taking their place.
Meanwhile, the fate of the historic Voting Rights Act hung in the balance.
The landmark VRA owed much to the heroism of rank-and-file members of the civil rights movement and to the leadership of President Lyndon Baines Johnson. Nearly a century earlier, passage of the Fifteenth Amendment in 1870 had extended to black men, many of them former slaves, the right to vote and, with it, the chance to hold political office. However, the era of flourishing black political participation proved brief. The Republican presidential nominee Rutherford B. Hayes agreed to pull Union troops out of the South in 1877 in return for the electoral votes of Florida, South Carolina, and Louisiana. The North lost its moral edge and the political will to police the former Confederacy.
Never far out of line with public opinion, the conservatives on the Supreme Court of the day then proceeded to overturn many of the laws designed to protect the rights of former slaves. They also turned a blind eye to the major techniques of disenfranchisement, with the exception of the grandfather clause (which restricted current voters to those whose grandfathers had the right to vote before the Civil War). By World War II, the Court had begun lending a more sympathetic ear to plaintiffs charging violations of the Fifteenth Amendment; however, few African Americans who were denied access to the ballot box could afford the economic, physical, and psychological costs of prolonged legal action.
With no constraints from the Court, the White House, or Congress, a southern white elite—bent on securing political, social, and economic control—rendered black citizens politically powerless. Their methods included intimidation, violence, and myriad legal devices such as literacy tests, poll taxes, and whites-only primaries. In 1965, only 335 of the 15,000 voting-age black citizens of Selma, Alabama, were registered to vote, despite voter registration efforts by civil rights activists.
On March 7, 1965—a day that would later be remembered as “Bloody Sunday”—the Student Nonviolent Coordinating Committee leader John Lewis, Hosea Williams of the Southern Christian Leadership Conference, and the people of Selma made history. Beginning a five-day voting-rights march from Selma to Montgomery, the marchers were beaten and trampled upon by state police, some of whom were on horseback. Once national television networks showed camera footage of the ferocious violence inflicted on the marchers, voting rights became a national cause.
Personally sympathetic, President Johnson realized that restoring voting rights to blacks—a Second Reconstruction—would test his considerable political skills with Congress. He also knew he had no other choice. Congress had tried to insert strong voting provisions into the Civil Rights Act of 1957 and again into the Civil Rights Act of 1964. But segregationist Democrats had consistently watered down those provisions, leaving the poll tax and literacy tests in place.
To expand the vote, Johnson needed help from moderate Republicans, who could rest assured that their own constituents would be little affected. Appearing before a joint session of Congress and a national television audience of seventy million, the president made an emotional appeal for action. “It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote,” he declared. “It is all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”
Facing a powerful coalition of southern Democrats and conservative Republicans, a bipartisan group of Democrats and moderate Republicans with strong backing from the White House succeeded four months later in passing what Johnson called one of the most monumental laws in the entire history of American freedom. The legislation sought to transform black southerners into “active participants in the governance process,” as the distinguished liberal legal scholar Pamela Karlan later noted. The right to vote in a representative democracy had to have instrumental value, reflecting a fair chance for minorities to determine their policy preferences and ensure that their interests were protected.
The Voting Rights Act of 1965 sought to achieve this goal in several ways. Section 2, which closely followed the language of the Fifteenth Amendment, applied a nationwide prohibition against discriminatory voting practices and procedures. This included prohibitions against discriminatory redistricting plans, at-large elections systems, and voter registration procedures. Section 3 authorized federal courts to place states and political subdivisions under federal oversight of their voting practices. Section 4 established a “coverage formula” that provided legal criteria to determine whether a jurisdiction was subject to the requirements of Section 5 of the act. In turn, Section 5 provided a “preclearance requirement” under which (mostly southern) jurisdictions were required to submit any alteration of voting practices to the attorney general for approval. Any lawsuits against voting practices had to go directly to the federal court for the District of Columbia to determine whether the proposed alteration had a discriminatory intent or unintentional repressive effects.
A substantial increase in federal oversight, the act was supported initially by the Court and later extended by Congress in legislation signed in updated form by Presidents Nixon, Ford, and Reagan. From the outset, however, the VRA’s larger goal—creating a more inclusive democracy through minority representation—came under assault. Eager to build the GOP in the South, Nixon and Reagan both quietly abetted efforts to let the act expire. Republican-nominated justices (Rehnquist, O’Connor, Scalia, Thomas, and Kennedy) further blunted the VRA’s impact by insisting that the Justice Department prove not only the discriminatory effect of actions limiting the voting rights of minorities but discriminatory intent as well. Yet despite robust and persistent opposition, Congress expanded the act in 1975 to include language assistance for minorities and extended it again in 1982 for twenty-five years.
George W. Bush carried on the tradition of his GOP predecessors. His attorney general, John Ashcroft, staffed the Civil Rights Division with political appointees dedicated to thwarting the VRA’s mission. He also hired as special counsel to the division Hans von Spakovsky—a man obsessed with the specter of voter fraud (as opposed to election fraud). Von Spakovsky, in turn, persuaded GOP officials in states under Republican control to follow up with voter-ID laws, cutbacks in early voting, curtailment of same-day registration, and other measures that disproportionately penalized minorities, students, and the elderly. Yet with the VRA set to expire a year before the 2008 presidential election, George W. Bush and his party did not want to shoulder the blame for the act’s demise at a time when they needed black votes. In 2006, the Republican leadership on Capitol Hill pledged support for reauthorization.
Leaders on both sides of the aisle knew that disagreements were in store. Liberals had long believed that the provisions of the VRA did not go far enough to prevent voting-rights violations. Conservatives insisted it went too far. Much had changed since 1965, including demography. Robust two-party competition existed in parts of the South, especially urban centers. Most states with a significant minority population could boast a cohort of black elected officials at all levels.
While revisions of the VRA were clearly in order, the political will to undertake them was lacking. Civil rights were not high on the public’s agenda during the long Iraq war. GOP ascendency in what had once been the solid South allowed Republicans, who in principle opposed the VRA, to be its beneficiaries in practice. Most important, any attempt to enlarge the coverage formula would invite debate about which members’ present-day districts were more racist than others, destroying the bipartisan coalition in support of the VRA.
Compounding the political inertia were concerns about how the Court might respond. Since 1982, the Court had narrowed its view of Congress’s power to enforce the post–Civil War amendments—the constitutional basis for the VRA’s Section 5. Adherence to federalism and the Republican version of color blindness—hallmarks of the conservative majority—suggested that solicitude for the equality and dignity of states might well outweigh the rights of persons, especially persons of color, to effective representation and equal protection.
The House and Senate Judiciary Committees proceeded to hold extensive hearings, followed by debates in the full House and Senate. What emerged was evidence of a long list of voting-rights offenses, including but not limited to threatening students at a historically black college with prosecution if they tried to register; creating regulations making it more difficult to register; relocating polling places so that blacks and Hispanics would have to travel to remote or hostile venues in order to vote; and canceling elections or abolishing elected bodies just as black and Hispanic candidates were on the verge of gaining the majority of seats on a governing body.
With a legislative record amounting to more than fifteen thousand pages, Congress concluded that the VRA had produced significant progress in eliminating the original barriers to ballot access. Nevertheless, “second generation barriers constructed to prevent the minority from fully participating in the electoral process” continued to exist, as did racially polarized voting in the covered jurisdictions. Indeed, the majority of successful voter-discrimination lawsuits in the period up to 2006 had occurred in jurisdictions covered by Section 4.
In what appeared to be an impressive display of bipartisanship, the House voted overwhelmingly for reauthorization, despite an earlier rebellion by GOP legislators from the South whose crippling amendments failed. The Senate followed with a unanimous vote on July 20, 2006, and President George W. Bush signed the bill one week later.
But the aura of unanimity was, in fact, deceptive. As anticipated, the reauthorization process had been a classic exercise in “political avoidance.” The new version left intact most of the VRA’s provisions. The same areas remained covered, the Department of Justice retained its special place in the preclearance regime, and procedures for “bailing out” with a record of good behavior remained unchanged. Section 5 had to be reconsidered in fifteen years, even though the act was not set to expire until 2031.
Still, after months of impassioned debate, the crown jewel of the civil rights movement appeared to have been secured. Constitutional scholars pointed to papered-over divisions about the VRA’s meaning, especially within the Senate Judiciary Committee, as possible pitfalls in the new legislation. New fiats from the Court seemed likely, given the conservative majority’s preoccupation with reducing race-conscious districting. What no one anticipated was the election of Obama and the firestorm that historic event would reignite.
To some, Obama’s election signaled that race no long mattered and that the VRA was no longer necessary. It was indisputable that African Americans and other minorities had voted in large numbers in 2008. The Voting Rights Act, moreover, had played a crucial role in making those votes possible. “If it weren’t for the Voting Rights Act, there would be no President Obama,” noted Theodore M. Shaw, former president of the NAACP Legal Defense and Educational Fund. Despite the election of the first African American president, Shaw argued, one presidential election did not justify the removal of federal oversight. His equally wary Latino counterparts in the Mexican American Legal Defense and Educational Fund emphatically agreed. But their views were rejected by long-standing opponents of the VRA, who characterized Obama’s election as a win in a politically “open market” that no longer required federal protection.
Thus far the constitutionality of Section 5 had gone unchallenged. However, immediately following reauthorization, Edward Blum decided to test the waters with a case from a tiny utilities district. When Northwest Austin Municipal Utility District No. 1 v. Holder reached the Court in 2009, Ginsburg sounded the alarm. Knowing how adept the chief had become at sowing seeds for major changes in seemingly small steps, she called the case “perhaps the most important of the term.”
Roberts had worked hard in the Reagan Justice Department in 1982 to prevent the VRA’s reauthorization. His aggressive questioning of Deputy Solicitor General Neal Kumar Katyal during oral argument in 2009 indicated his views had not mellowed, despite assurances he had offered during his nomination hearings.
When the justices met in conference, the Court was deeply divided. The chief finally secured a nearly unanimous majority for a narrow ruling for the utility company. In his formal opinion, Roberts began by paying tribute to the act’s accomplishments. He also acknowledged that improvements may be “insufficient and that conditions continue to warrant preclearance under the Act.” Then moving on to the larger question, he issued a warning: “The Act imposes current burdens and must be justified under current needs. The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than thirty-five years old and there is considerable evidence that it fails to account for current political conditions.” Extending Section 5 without updating the jurisdictions where federal preclearance of electoral changes is required, Roberts continued, “raise[s] serious constitutional questions” as to whether a statute conceived in 1965 is still warranted, given the progress the South has made.
In claiming that the VRA also differentiated among the states “despite our historic tradition that all the states enjoy equal sovereignty,” Roberts imposed a new interpretation of the doctrine of equal sovereignty, which had long been understood to apply only to the terms on which states entered the Union, not to treatment of local evils that might have subsequently appeared. He also provided legal guidance to opponents of the act when he then declared that “a departure from the fundamental principles of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem it targets.”
Roberts’s objection—that the Section 4 coverage formula singled out certain states for a weighty burden even though “the evil that Section 5 is meant to address may no longer be concentrated” there—was clearly heard in legal circles. Adam Liptak reiterated what Ginsburg had already grasped: that the chief justice had emerged as “a canny strategist, laying the groundwork for bold changes that could take the court to the right.” The legal scholar Richard Hasen agreed, pointing to Northwest Austin as a prime example of “anticipatory overruling.” Anticipating correctly that the Roberts majority would use Northwest Austin as a starting point in a decision overturning Section 4, the Columbia Law School professor Jamal Greene urged, “Remember that line [‘the Act…must be justified under current needs’] if and when the constitutional issue returns to Court.”
When Congress failed to act, the ever-entrepreneurial Blum was ready. He had another case waiting. The Civil Rights Division had rejected a voting map in the town of Calera, Alabama, a white suburb of Birmingham located in the southwestern tip of Shelby County, only fifty-six miles from Selma. Dubbed “the heart of Dixie,” Calera had accumulated numerous violations of the VRA over the years, as recently as 2008.
Bert Rein, the lawyer who had represented Abigail Fisher, filed Shelby County v. Holder in district court in Washington in April 2010. Turned down in district court, Rein appealed to the U.S. Court of Appeals for the D.C. Circuit. Losing again in a split decision, he appealed.
Presented with two cases challenging the constitutionality of Section 5, the Court agreed to hear Shelby. The question on which the justices would rule was whether Congress, in reauthorizing in 2006 Section 5 of the VRA using the preexisting coverage formula of Section 4, exceeded its authority under the Fourteenth and Fifteenth Amendments. Oral argument in this high-stakes showdown was set for February 27, 2013. The outcome would hinge on how the Court’s right-leaning justices viewed Congress’s power to enforce the two post–Civil War amendments.
Only a month after Obama’s second inaugural, tourists making the rounds of Capitol Hill on a cold February morning could witness a study in contrasts. At the Capitol, a ceremonial unveiling of a statue of Rosa Parks, the lifelong civil rights activist who had ignited the Montgomery bus boycott, provided a celebratory occasion at which President Obama spoke. Across the street at the Supreme Court, African Americans stood silently holding signs reading, “Protect My Vote,” as the doors swung open, allowing people waiting in line to enter.
As Rein began his argument about the changing South and the burden that preclearance procedures imposed on the “equal dignity” of the covered states, Sotomayor, Ginsburg, and Kagan pushed back. “Just think about this state you are representing,” said Kagan, “it’s a quarter black but Alabama has no black statewide elected officials. If you use the number of Section 5 enforcement actions, Alabama would again be on the list. Under any formula that Congress could devise, it would capture Alabama.”
Activists outside the Supreme Court as it prepares to hear Shelby County v. Holder.
Kennedy then intervened, pressing Rein to acknowledge that preclearance not only treated states differently but also infringed on state sovereignty and the “equal footing doctrine.” Ginsburg protested. In a previous decision, the Court had not only upheld the VRA but also rejected the “equal footing” doctrine. But Kennedy persisted. If Congress is going to single out states, it should do so by name, rather than just reenacting the existing formula. Alito agreed, questioning whether discrimination is “a bigger problem in Virginia than in Tennessee, or a bigger problem in Arizona than Nevada.”
When Solicitor General Donald B. Verrilli Jr. began his defense of reauthorization, Roberts asked the same question he had asked in Northwest Austin: “Is it the government’s contention that citizens in the South are more racist than the North?” Verrilli responded that the government was not making that claim, rather that Congress had found that Section 5 was still needed in covered jurisdictions and only a “tiny fraction” of the proposed electoral changes submitted under the preclearance process had raised objections from the Justice Department.
Roberts and Alito remained unpersuaded. Kennedy, though at times indicating ambivalence, appeared increasingly skeptical. Scalia, in the most jarring comment of the morning, described reauthorization as the “perpetuation of a racial entitlement.” Thomas, having previously indicated his willingness to overturn the law, maintained his customary silence.
When Rein returned to the stand for his brief rebuttal, he reiterated his argument that sufficient progress had been made in Alabama and the other covered states to justify restoring their full sovereignty. Sotomayor and Kagan zeroed in on the critical question: Who gets to make that decision—Congress or the Court?
The sharp ideological fault lines in the Court had rarely been exposed more dramatically, observed Robert Barnes of The Washington Post. Implicit in his observation was the extent to which conservative reaction to the civil rights movement had infused the spirit of Dixie into the Grand Old Party and ultimately the Marble Palace. While opposition to Brown v. Board of Education played out dramatically in the South, white resistance to racial advances was a national phenomenon. The article “Why the [White] South Must Prevail” appeared not in The Birmingham News or The Atlanta Journal but in the Manhattan-based journal National Review, founded in 1955 by the conservative intellectual William F. Buckley Jr. At issue for Buckley and fellow conservatives was not just school integration but something much larger. The civil rights movement advanced a vision of democratic government active in the pursuit of social justice that right-leaning individuals viewed as an extension of the New Deal and its egalitarian principles.
In order to achieve a rollback of the regulatory authority of the federal government, a resurgent political movement on behalf of states’ rights became an imperative. Resurrection of the soft rhetoric of states’ rights was an integral part of Richard Nixon’s southern electoral strategy. When Ronald Reagan, the shining hope of the conservative movement, began his presidential campaign “to get government off our backs” in 1980, he made a stop in Mississippi at the Neshoba County Fair. Neshoba County, a white supremacist stronghold where three young civil rights activists—Andrew Goodman, Michael Schwerner, and James Chaney—had been murdered in 1964, still sheltered some of the conspirators. Reagan, who had opposed the landmark Civil Rights Act, spoke to the enthusiastic crowd on “states’ rights,” alerting the audience and the press alike that he and his party would stand with whites. George H. W. Bush and George W. Bush would follow Reagan’s lead in promoting “color-blind” policies—a retreat from equality with more respectable connotations for suburban voters North and South who were turned off by extremism. By advancing Republican adherents of color blindness to the high court, the Bushes fortified a majority willing to elevate “state sovereignty” to the level of fundamental principle. Shelby was not just a measure of the metamorphosis that the party of Lincoln had undergone. It was also part of a conservative project to shred reforms designed to protect and expand democracy.
On June 25, 2013, the Court finally announced its decision in Shelby County v. Holder. Ignoring decades of law governing the Court’s review of the Voting Rights Act, the five conservatives struck down Section 4’s coverage formula, which had been used to determine the areas designated for federal oversight. While Section 5 still remained law, it had been rendered meaningless without Section 4. It was the most significant congressional act to date to be struck down under the rational basis standard of review.
Writing for the majority, Roberts proceeded, as predicted, with the statement in Northwest Austin that “the Act imposes current burdens and must be justified by current needs.” In 2006, he wrote, Congress acted “as if nothing had changed.” In fact, the Census Bureau indicated that African American voter turnout has come to exceed white voter turnout in five of the six states originally covered, with a gap in the sixth state of less than one-half of 1 percent. The paucity of enforcement actions under the act, the chief contended, constituted further evidence of the disconnect between stringent oversight of the covered area and current on-the-ground reality. Failure to update an act that departs so sharply from the “fundamental principle of equal sovereignty” of the states, according to Roberts, left the Court no choice but to declare Section 4 invalid. “Our decision in no way affects the permanent, national ban on racial discrimination in voting found in Section 2,” he continued. “We issue no holding on Section 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.”
Ginsburg knew full well that a hyper-partisan Congress beset by gridlock would be unlikely to draft another formula. Even if it could, there was no guarantee the formula would be upheld. Her powerful dissent, which Breyer, Sotomayor, and Kagan joined, did not mince words. Foremost, she reminded her right-leaning colleagues that the assessment as to whether the VRA should continue in full force was Congress’s to make. Consistent with the post–Civil War amendments, it should have commanded the Court’s deference.
Second, the struggle for fairness in elections was far from over. The intent of the Voting Rights Act, she emphasized, was not merely to put an end to various devices that impeded access to the ballot in 1965, as the majority seemed to have assumed. Rather, “the grand aim of the act is to secure to all in our polity equal citizenship stature, a voice in our democracy undiluted by race.” That meant not only dealing with second-generation forms of discrimination but also maintaining the level of federal oversight that prevents backsliding in covered areas.
The majority, Ginsburg noted, had pointed to the paucity of enforcement actions under Section 5 as evidence that the act was no longer needed in the preclearance areas. It also acted as if registration and turnout were the whole story, ignoring the careful assessment of Congress based on legislative hearings. It also failed to engage evidence of persistent discrimination in covered areas. In addition, she pointed out, the majority had failed to recognize the continuation of polarized voting, which meant that minorities were at risk of being systematically outvoted and having their interests underrepresented in state legislatures. Had the Court been as diligent as Congress in studying the record, Ginsburg maintained, the majority would have also found that the case Congress made for retaining oversight of covered areas was solid. Evident as well was the fact that a number of jurisdictions that had “bailed out” since 1965, thereby permitting them to make voting changes without federal approval, which belied the majority’s portrayal of the act as static.
It was not just the failure of the Court to do its job that Ginsburg so deplored. It was also the conservative majority’s seeming failure to understand what that job entailed. The Court’s responsibility, she pointed out, was not to decide whether Congress had chosen the perfect remedy. Rather, it was to decide “whether Congress has rationally selected means appropriate to a legitimate end.” She also highlighted other disturbing lapses: the failure to indicate the standard of review as well as to address Shelby County’s right to mount a facial challenge (one in which no application of the law is constitutional). “By what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA” when there is so much evidence of continuing violation in that state? “Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decision making,” she charged. “Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.”
Hubris, she maintained, was also evident in the majority’s “unprecedented extension of the equal sovereignty principle out of its proper domain—the admission of new States.” The “sad irony of today’s decision,” Ginsburg concluded, “lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. With that belief, and the argument derived from it, history repeats itself.”
On June 25 in a somber, silent courtroom just before the term ended, Ginsburg read aloud a nine-minute summary of her Shelby dissent from the bench. Slightly changing the conclusion from her written version, she underscored the moral and jurisprudential chasm separating the Court’s two sides. Invoking the words of Martin Luther King Jr., she said, “The arc of the moral universe is long, but it bends toward justice,” and then added a qualifier, “if there is a steadfast commitment to see the task through to completion.” She concluded, “That commitment has been disserved by today’s decision.”
This was the second time that the nation had lacked the moral edge and political will to make Reconstruction secure. It was the second time, too, that a conservative majority’s exalted conception of the Court’s power had functioned as an enabler for those who no longer chose to show concern for the historically excluded. History would indeed repeat itself, as Ginsburg predicted.
Texas promptly announced that a strict voter-identification law, which had been put on hold because of its discriminatory effects, along with redistricting maps would no longer be submitted for federal approval. In North Carolina, where Republicans had gained control of the governorship and both houses of the legislature for the first time since 1877, lawmakers acted with similar dispatch. Adopting new district lines and a voter-ID law, they also rolled back early voting and same-day registration. These were hard blows to the working poor and especially to the black churches that organized “souls to the polls” voting drives. Nor were racial minorities the only groups whose rights were being curtailed. Older citizens often lacked a driver’s license that would serve as a form of identification. In university towns where students were likely to increase votes for Democrats, student IDs would no longer be acceptable.
“Disgusting,” declared Rosanell Eaton, a ninety-four-year-old North Carolinian who had memorized the preamble of the Constitution in order to register in the days when the state had a literacy test. Agreeing, one of her contemporaries, Henry Frye, said, “It’s not quite what it was a long time ago. It’s more sophisticated.” As eight other southern states followed suit, both Eaton and Frye could agree with William Faulkner’s famous line: “The past is never dead. It’s not even past.”
Racial hierarchy and political power had always been far too deeply interwoven in the fabric of American life to be limited primarily to the areas of the Old Confederacy covered by preclearance. Republican-controlled states in the Midwest and the North had begun to tighten qualifications even prior to Shelby. Spurred by specious claims of voter fraud emanating from operatives in George W. Bush’s Department of Justice, restrictions accelerated as evermore Republican-dominated states following the 2010 elections sought to keep minority constituencies from being able to vote. By 2016, a total of fourteen states had adopted restrictions on voting rights, earning the United States the dubious distinction of being the only mature democracy in the world that made it harder rather than easier for its citizens to vote.