I was a legal intern in the New York office of the NAACP Legal Defense Fund in 2006. A sense of civil rights history, past and present, pervaded the office. Its founder, Thurgood Marshall, had argued Brown v. Board of Education while working there.
By a happy coincidence, I had arrived during the time when the office was working to help testify in support of the reauthorization of the Voting Rights Act. After a summer of hard work, one of my most cherished memories was the celebration we had when the U.S. Senate passed the reauthorization act by a vote of 98 to 0.
Seven years later, my heart is broken to see undone, not only my own work and the work of my colleagues, but more profoundly the work of civil rights activists spanning generations. Most poignantly, my thoughts linger on those whose blood was spilled on U.S. Highway 80 in Selma, Alabama on a day in 1965 that will always be remembered as “Bloody Sunday.”
The pain would be worse if I felt that we failed to amass a sufficiently thorough record in 2006, or that we lazily relied on “40-year-old facts having no relation to the present day,” as asserted by Chief Justice Roberts in the majority opinion on Shelby County v. Holder. My cognitive dissonance on this point could not be more acute. Justice Ruth Bader Ginsburg accurately noted that the 2006 congressional record of 21 hearings and 15,000 pages belies this point.
My own experience also belies this point. I remember long nights at the office, watching NAACP attorneys Debo Adegbile, Ted Shaw and others pour in heroic amounts of work, compiling contemporary cases of discrimination persuasive to all but the most hardened. The 98 to 0 vote did not happen by accident.
In addition, this decision was very wrong on the merits. As Justice Ginsburg argues in the latest of her brilliant dissents, the Court perversely uses the Voting Rights Act’s own success as an argument against its survival, the ultimate Catch-22. As she observes, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
My own personal pique and the weight of logic aside, this decision does damage to the U.S. Supreme Court as an institution. Shelby trampled any remaining ideals of judicial restraint.
To overturn a law passed so overwhelmingly by Congress, on an issue – voting – where politicians clearly have legitimate expertise, on an expansive notion of state rights that would warm the heart of George Wallace himself, is horrifying enough. More disturbing is that the decision was reached along party lines, with the five Republican appointees voting to overturn a law that would disproportionally help Republican candidates if it systematically results in the suppression of minority voting opportunities, as it is expected to do.
Even more disturbing was Justice Scalia’s conjecture during oral argument that Congress would never vote against a “racial entitlement,” leading us to suppose that the U.S. Supreme Court now feels qualified to judge the intentions of Congress and to overturn laws based on what they surmise the motivations of Congress to be.
Most disturbingly, if history’s pattern holds, we can expect a deluge of Voter ID laws, limits on early voting, racial gerrymandering, and limited access to polling locations in minority communities around the country.
When considered in the wake of Citizen’s United, one could very well surmise that this U.S. Supreme Court has indeed begun an attack on democracy that is unparalleled in its history, rivaled only by the abomination that was Bush v. Gore.
Justin Hansford is an assistant professor of law at Saint Louis University School of Law. Follow him on Twitter @Blackstarjus.
