It's hard to pick the biggest roundhouse punch from among the many punches thrown by defenders of Sec. 5 of the Voting Rights Act in the aftermath of the oral argument in Shelby County v. Holder. But my vote goes to the Linda Greenhouse's furious NYT Opinionator column, "A Big New Power:"
The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.
But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”
Now, another formidable legal commentator, Richard Epstein, has stepped up with "The Mirage of Racism" to defend the honor of the derogators of Sec. 5, taking on Greenhouse directly but distancing himself from Justice Scalia's "provocative, if ill-considered, remark in oral argument characterizing the Voting Rights Act of 1965 (VRA) as the 'perpetuation of racial entitlement.'" He argues:
A motive-based inquiry that looks at the intent of the public body in enacting certain voting practices generates better results than the disparate impact approach. To scorn that approach invites all sorts of disparate treatment. Thus there is a steady stream of justice department initiatives that have forced states to adopt grotesquely shaped majority-minority districts, with the sole purpose of maximizing the influence of minority voters.
All of this has met with an uncertain response in the Supreme Court, which tries to have it both ways by applying a standard of strict scrutiny while showing at least some respect to the Justice Department’s handiwork. Yet these complex efforts that rig district lines make it exceedingly hard to determine which, if any, of these initiatives do increase minority representation, given that redrawing the lines for one district necessarily redraws them for others.
At this point, the irony increases. If the Fifteenth Amendment were read as a colorblind provision, all of these redistricting efforts with transparent racial motivations would have to be promptly struck down on the grounds that they deny or abridge the voting rights of all citizens, black or white, who are not in the preferred district. The notorious refusal to take this step is yet another instance in which the ostensible effort to remove race from politics has had the exact opposite effect.
So what is Epstein's prescription?
Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.
