More Shelby County: A Decision That Remains Indefensible

Both chez Volokh and in comments at Crooked Timber, Johnathan Adler attempts (without quite endorsing the results) to do what John Roberts and his apologists have manifestly failed to do: offer a remotely credible defense of the holding in Shelby County. It’s a thankless task, so the arguments are worth engaging with. I see a couple of major points. The first:

Phrased this way, the question misunderstands the premises underlying the majority opinion and, as a consequence, illustrates a fairly fundamental divide between the way many on the Left and Right view questions of federal power. The Left generally sees a vast sea federal power limited by islands of protections for various rights. From that perspective, the relevant question is whether there is something in the Constitution (or its principles) that defeats federal legislation. Many on the Right start from a different premise: The Constitution authorizes islands of federal power in what is otherwise a sea of questions reserved to states or the people. These characterizations are broad generalizations, to be sure, but I think they capture a real divide in conceptions of federal power.

The failure of Shelby County to identify a constitutional provision Section 5 violates might not be a problem, according to Adler, because the issue is a lack of federal authority as opposed to Congress transgressing a provision of the Constitution. It is worth noting, however, that Roberts — perhaps realizing that an argument that Congress lacked textual authority was going to have trouble getting airborne given that Section 2 of the Fifteenth Amendment provides clear textual authority for the statute — does at least gesture towards textual limitations (in the way that Kennedy’s almost-as-incompetent DOMA opinion flirted with federalism.) The problem is that the first he cites (the Tenth Amendment) is in this context an irrelevant tautology, and the second (the “equal sovereignty of the states”) is neoconfederate gobbledygook with no basis in the text of the Constitution and no basis in precedents that retain any credibility after Appomattox.

This aside, what exactly is the basis for arguing that Section 4 exceeds federal authority, given the explicit textual authorization contained in the 15th Amendment and the fact that the preclearance provision is clearly rationally related to the end of protecting voters against racial discrimination? Here, Adler turns to the formula that the Rehnquist Court invented to make it harder for Congress to exercise its clear textual authority to enforce the civil war amendments:

As I noted in my post, the idea that the degree of federal intervention should be proportional to the nature of the problem, and not merely plausibly rational, is not an invention of the Shelby County decision. Rather it’s how the Court has interpreted the 14th Amendment enforcement power for some time. The power to “enforce” with “appropriate” legislation must be congruent and proportional to the harm Congress seeks to prevent. This does not require judges to believe that Congress has adopted the “right” response, but only that there is some degree of fit between the legislation and the underlying problem. Such an analysis easily incorporates some degree of temporal context.

It should be noted immediately that this isn’t what Roberts says he’s doing — he doesn’t cite the congruence and proportionality test, or City of Boerne, or Morrison. (Of course, doing so would be inconvenient, given that both cases distinguished the preclearance provisions as examples of acts of Congress that were congruent and proportional.) He just smuggles a some kind of narrow tailoring requirement into Section 2 of the 15th Amendment without any serious attempt to justify it. So we can’t know exactly why Section 4 is supposed to be incongruent and/or disproportionate. But given that Congress carefully selected a limited number of states and allowed any state covered by preclearance to bail out of the requirements, it’s hard to see how Section 4 could exceed the authority granted to Congress by the 15th Amendment. The bailout point is a very important one — as Ginsburg pointed out, the history of bailouts (and bail-ins) “exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions.” Roberts’s comprehensively inadequate opinion fails to address this point at all.  Particularly as applied here, the requirement for congruence and proportionality (or whatever you want to call Roberts’s nameless substitute) is little but a manifestation of free-floating hostility to civil rights enforcement that ensures that Congress will always be doing too much or too little to properly use its 14th and 15th Amendment powers unless a majority of the Supreme Court approves of the policy ends Congress is pursuing.

And while the cases are not wholly comparable given that one involves federal powers and one involves state power, it’s worth noting that when it came to the power to limit the franchise as opposed to the power to protect access to the franchise, the Supreme Court was willing to cede nearly unlimited power to the state (although the state was unable to cite any examples of the “fraud” it was allegedly trying to prohibit, a striking contrast with the VRA.) When the Civil War Amendments are interpreted so as to make it easier for states to stop people from voting than for the federal government to ensure fair access to the ballot, something has gone seriously awry.

And, finally, I should say that citing the “congruence and proportionality” test isn’t much of a defense even had Roberts done so, because the test is a disaster — an extratextual standard that is subversive of the purpose of the civil war amendments and fails to give meaningful guidance to Congress.  I have no objection to “structuralist” forms of constitutional argument that infer prohibitions from the underlying purposes of various provisions, per se. But the attempt to read an implicit “state sovereignty” restriction into the provisions that empower Congress to enforce the Civil War Amendments is a bad structuralist argument because it’s plainly inconsistent with the purposes of the amendments. Inventing a rule that makes it much more difficult for Congress to enforce its power to protect civil rights than to exercise its Article I powers is perverse. And, as Shelby County also illustrates, it’s premised on an additional illogic — that statutes enforcing civil rights become unconstitutional if they work. Roberts’s argument seems premised in part on the idea that once racial discrimination has been alleviated things can only get better and never worse, a theory American history rather comprehensively disproves. There is no “Congress shall be Whig historians” clause in the Constitution, and as such Section 4 of the Voting Rights Act is well within the authority of Congress to enact and does not transgress any other constitutional boundary.