Editor’s Note: Theodore Ruger, Professor of Law, is a constitutional expert whose scholarship focuses on the application of judicial authority. This post is part of a series by Penn Law faculty on the major decisions being issued this week by the U.S. Supreme Court.
Change was in the air – and in the opinions – at the Supreme Court this week. In his Shelby County v. Holder majority opinion invalidating a key portion of the Voting Rights Act of 1965, Chief Justice Roberts stressed that “things have changed dramatically” over the past 50 years, and that “history did not end in 1965.” These words are clearly apt when applied to the Supreme Court’s decision the following day striking down the Defense of Marriage Act; few could have imagined on DOMA’s passage in 1996 that public (and judicial) attitudes would shift so substantially in favor of same sex marriage in less than two decades.
Yet the theme of a changed world is more problematic and ambiguous within the realm of unequal minority access to political power, the issue area where the Chief Justice made those assertions in the Shelby case. The Court’s majority is surely correct that the forms, and extent, of outright electoral discrimination based on race have changed and lessened in the past half century. Still, the phenomenon persists even as the toolkit for diminishing minority voting power has changed; within a few hours of the Supreme Court’s Shelby ruling the Texas state legislature announced it would press ahead with a restrictive voter ID law of a form known to depress minority electoral participation.
By striking only one of several of the VRA’s provisions potentially available to restrict discriminatory electoral practices, the Supreme Court left on the books other avenues for challenging dubious voting structures, although ones with starkly different institutional and temporal valence. With Section 5’s federal administrative preclearance mechanism effectively eviscerated, minority plaintiffs can (and will) still sue under Section 2 of the VRA, but this litigation will be decentralized in disparate individual lower federal courts, and will be resolved only well after the fact, as opposed to the relatively quick ex ante review formerly provided by the Justice Department.
Taken together with some of the language in Justice Kennedy’s Fisher opinion a day earlier remanding the affirmative action issue back to the lower courts with instructions to consider “race neutral” alternatives, the Chief Justice’s emphasis on a changed world of racial politics in Shelby evinces an insistent – but perhaps unrealistic – impatience with the ongoing relevance of race in American life among some of the key Justices on the current Court. But whether the Justices like it or not, race and race discrimination remain a part of American life. The Chief Justice is surely correct that “history did not end” in 1965, but it did not start there either, and even fifty years of federal civil rights legislation have proven insufficient to unravel the effects of centuries of racial discrimination in the United States.