Robert’s Long War against the Voting Rights Act will be lost because of Scalia’s self serving musings from the bench.
Shelby County vs. Holder offers Roberts an opportunity to complete a mission he began thirty years ago.
In 1981, Roberts, a young conservative attorney serving the Ronald Reagan and George HW Bush administration, wrote a series of memos to the Attorney General William French Smith. In the first one his thesis was that the Voting Rights Act ‘s provisions imposed burdens unequally upon different parts of the nation without sufficient cause.
In a second memo he wrote that voting rights violations should not be too easy to prove since they provide a basis for the most intrusive interference imaginable. Therefore, Roberts stated that discriminatory voting systems in most of the country could only be barred when discrimination could be shown to be intentional. This would require the kind of intensive investigation into motivation that would make it much tougher for the feds to intervene in states and localities and guarantee equal voting rights. Jurisdictions placing onerous burdens on voters could not be corrected under such a rule if the Attorney General was unable to prove that lawmakers and law enforcers intended to do harm.
Roberts, his associates, and his bosses failed to alter the Voting Rights Act during the Reagan and Bush administrations.
But for the next 30 years, Roberts continued to speak and write on this issue. His limited decisions from the bench also reflected this thinking when case law allowed him to apply his thinking. He did not get many chances. The Supreme Court, the Legislature, and the President continued to support, and even to expand the VRA’s reach right through George W. Bush’s administration. The Act has been renewed and amended by Congress four times, reviewed in Court findings 36 times, and the most recent being a 25-year extension was signed into law by Bush in 2006 after passing the House 390-33 and the Senate 98-0, one year after Roberts was appointed to the Supreme Court.
In 2009 as Chief Justice in an opinion for the majority (8-1) the court on a narrow statutory ground in a case involving the utility district in Austin, Tex., ruled that the Voting Rights Act was properly applied. (See: http://www.nytimes.com/2009/06/23/us/23scotus.html) But in that opinion he also offered the view that Section 5 represented an unconscionable and seemingly perpetual punishment for the South’s past sins. Roberts wrote that the government had made the “bailout provision”, that provided a way for jurisdictions with a history of discrimination to prove they no longer needed close supervision, “all but a nullity.”
The bailout provision is not a nullity. In the three years since that ruling more than 100 jurisdictions have been allowed to bail out of Section 5—more than twice as many in the nearly three decades before. Making the case is relatively easy to do and the court costs related to this are small, normally less than $5000.
Roberts also wrote that bailout rules should not be administered by judges but by elected officials charged with governing the jurisdictions in question, another attack on the concept of federal oversight.
Roberts and conservative opponents of a strong Voting Rights Act may have lost in 1982, but in 2012, they seem poised for a victory.
BUT now Scalia may have ruined Robert’s best chance to overturn the VRA.
Scalia (and Roberts) often hide behind what I call “a standard of Constitutional Purity” reflecting strict construction and original intention” as the “plausible and reasonable” foundation for their decisions. Of course, as experience shows, Scalia and other conservatives are very willing to play with the “fundamental law” revising it, and interpreting it to meet their need to serve a narrow form of American conservative thinking.
Still I think Antonin Scalia sees himself as a new Conservative Moses, a Lawgiver from the Right. He is not shy in sharing his thoughts. As Scalia ages he is less guarded in his language choosing to offer incendiary ideas from the Courts High Bench.
I believe that statements like those he made from the bench labeling voting as a racial entitlement and stating that Congress lacks the competency to weigh in on issues of this kind make it very, very, hard for Roberts to support a significant change in the VRA. No matter what their decision as a court is as stated in the majority opinion, it will be directly linked to Scalia’s thinking.
The public (and history) would associate Robert’s vote to two ideas: qualified American citizens do not have the fundamental right to vote, and that the checks and balances that are the key to the separation of powers in the three branches of government are not fundamental.
A decision that knocks down the Voting Rights Act will be seen as a “Scalia decision.” Roberts does not want a legacy that will label his court as “regressive, reactionary and ridiculous.” He dodged that bullet with his Affordable Care Act vote. I think he will do the same thing now. Duck and cover.