Despite being the signer of an amici curiae brief to the Supreme Court asking it to uphold the 1965 Voting Rights Act in the case of Shelby County, Alabama v. Holder, I was not surprised by the Court’s recent decision to gut the VRA.
The Court ruled that the states and jurisdictions covered by the VRA (largely those of the former Confederacy) can now change their elections laws without preclearance from the Justice Department. This ruling makes it much easier for these states and jurisdictions to resume the voter suppression efforts that they have historically engaged in. The decision reflects how similar this Supreme Court is to the post-Civil War Supreme Courts that did everything they could to neutralize the Thirteenth, Fourteenth, and Fifteenth Amendments, which were designed to give the freed slaves their full civil rights.
Justice Antonin Scalia gave a preview of how the Court’s five conservative justices were thinking about this case during last February’s oral argument , when he described the VRA as the “perpetuation of a racial entitlement.” For Scalia, the result was a situation neither Congress nor the electorate could be trusted to handle. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process,” he went on to say.
Chief Justice John Roberts, speaking for a divided 5-4 Court, left out Scalia’s combative rhetoric in his majority opinion, but his ruling embodies Scalia’s sentiments. In his majority opinion Roberts did not deny that extreme racial discrimination led to the 1965 enactment of the VRA. His point was that times had changed. Roberts insisted that the states and jurisdictions covered by the VRA were[A1] no longer engaged in the kind of discrimination that required being singled out for special legal scrutiny. When the VRA was renewed by Congress in 2006, it did not, Roberts wrote, take into consideration the “current” situation. “It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”
Roberts’s estimate of the extent of current voter discrimination is open to debate. Second-generation barriers to minority voting, in which burdensome I.D. requirements and racial gerrymandering have replaced literacy tests and poll taxes, have been widespread in recent years. But the key legal issue is not whether Roberts or Congress is right about voter discrimination. The key legal issue is why the Supreme Court’s judgment should take precedence over the judgment of Congress when it comes to a finding of fact.
Striking down an act of Congress is a grave undertaking, Roberts conceded. “We do not do so lightly,” he said of himself and his fellow justices. But after making this concession, Roberts and the four justices who sided with him did overrule Congress on no other basis than they are better judges of the extent of voter discrimination in the states and jurisdictions covered by the VRA.
Legal precedent is against the Court’s majority. When the Fifteenth Amendment, giving former slaves the right to vote, was ratified in 1870, it carried with it the proviso, “The Congress shall have power to enforce this article by appropriate legislation.” Similarly, in 1966, when the constitutionality of the Voting Rights Act came before the Supreme Court in the case of South Carolina v. Katzenbach, the power of Congress to act was once again upheld. “Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting,” Chief Justice Earl Warren wrote for the Court in a decision that was unanimous except for a minor dissent by Justice Hugo Black.
There is, however, a grim legal precedent that Justice Roberts and the Court’s majority can claim for themselves. It is the precedent established in the Civil Rights Cases of 1883 by Justice Joseph P. Bradley and a conservative Court, which also turned the law on its head.
In the Civil Rights Cases of 1883, the Court made it impossible to enforce the Civil Rights Act of 1875, which sought to provide all persons within the jurisdiction of the United States with “the full and equal enjoyment” of public accommodations. The laws and the courts of the individual states, not the Fourteenth Amendment, were the former slaves’ source of redress, the Court declared.
As the historian David Blight notes in his study, Race and Reunion, “In effect, the decision meant that the discriminatory acts of private persons were beyond the safeguards of the Fourteenth Amendment and federal jurisdiction.” The southern states, in which the most extreme post-Civil War discrimination was occurring, were not about to help the very population they had sought to keep in servitude.
The key to Justice Bradley’s opinion, like that of Chief Justice Roberts, was the premise that times had so dramatically changed that special civil rights protections were no longer needed for African Americans. “When a man has emerged from slavery,” Justice Bradley dismissively wrote, “there must be some stage in the progress of his elevation when he takes the rank of mere citizen, and ceases to be the special favorite of the laws.”
Justice John Marshall Harlan’s lone dissent in the Civil Rights Cases of 1883, in which he declared the Court’s decision rested “upon grounds entirely too narrow and artificial,” is the opinion we honor today. Years from now, there is every reason to think we will honor Justice Ruth Bader Ginsberg’s dissent pointing out the ongoing need for the VRA and the right of Congress to reauthorize it in the wake of twenty-one hearings and over 15,000 pages of testimony.
Such historical recognition of Justice Ginsberg will, nonetheless, be hollow if Congress cannot produce a new version of the VRA. It was not until the 1964 Civil Rights Act passed Congress that the discrimination the Civil Rights Cases of 1883 dealt with had an effective legal remedy.
Justice Bradley, although he never donned the white robes of the Klan, helped make possible decades of Jim Crow terror. His twenty-first century counterpart, Chief Justice John Roberts, has helped set the stage for decades more of modern voter-suppression efforts.
Nicolaus Mills is professor of American Studies at Sarah Lawrence College and author of Like a Holy Crusade: Mississippi 1964—The Turning of the Civil Rights Movement in America.