Monday, June 22, 2009

What happened to the Liberals in NAMUDNO?

The Supreme Court today upheld the constitutionality of section 5 of the VRA with only Justice Thomas dissenting. Because most of us believed that the Court would find the Act unconstitutional, the majority of the commentary has focused on the conservatives on the Court. Did Justice Kennedy refuse to go along as Luis suggests? Did the Court punt, as Heather Gerken explains? Is the Chief channeling Bruce Ackerman as he intimates? Did the Chief Justice blink, as Rick Hasen provocatively proposes? Is the Chief now a master facilitator as Jamal Greene notes? For me the question is not what happened to the conservatives, but what happened to the liberals.

Let's look carefully at the text of the opinion that Justices Stevens, Ginsburg, Souter, and Breyer agreed to without a single word in dissent.
1) The past is not prologue: the conditions that justified section 5 in the past "have changed;" "blatant discriminatory evasions of federal decrees are rare," "past success alone . . . is not adequate justification to retain the preclearance requirements," and "the Act imposes current burdens and must be justified by current needs."
2)The Act departs from the "historic tradition" of equal state sovereignty: the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets." The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions. (Incidentally, I think this equal state sovereignty point makes it hard to accept Ackerman's explanation of the majority opinion in NAMUDNO
3) The Act imposes "substantial federalism costs". (And here is the kicker.) These costs are "serious" whether one applies the more forgiving "rational" relations test as opposed to the harder "congruence and proportionality test."

Do the liberals believe this? Was their silence part of an implicit bargain? The Chief did everything but rule section 5 unconstitutional and the liberals went along with it. Perhaps the price paid, preserving the constitutionality of section 5 (in name only?), was worth it. Maybe the Chief was blinking or maybe he was winking.

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