3 reasons why Shelby County v Holder is a terrible decision

As the nation digests what it means for the future of voting rights that a key portion of the VRA has been struck down, it is worth thinking through why the Shelby County v Holder case is so abominable.  First, I have already noted yesterday the practical effects of wiping out "preclearance" would mean that it would be far more difficult for complainants to bring lawsuits and that the legal remedy would be after the fact whereas preclearance would have subjected any changes in state/county election law from the designated counties to federal supervisions before it could even take effect.

Second, from a doctrinal standpoint, Scott Lemieux has written about the thin legal justification for the Roberts majority striking down Section 4 of the VRA, described by Karen Tumulty as the "crown jewel" of the Act.  Lemieux writes:

[T]he case for the constitutionality of Section 4 of the Voting Rights Act is both extremely powerful and uncomplicated. Section 2 of the 15th Amendment clearly and unambiguously gives Congress the authority to enforce the constitutional prohibition on racial discrimination in voting “by appropriate legislation.” In this context, “appropriate” In simply requires there to be a rational relationship between the legislation and the objective. In the legal sense of “rational,” Section 4 qualifies easily.

Given the obvious basis for the act’s constitutionality, what part of the Constitution does Section 4 violate? Alas, as Paul implies even after reading Roberts’s opinion one is no closer to the answer. There’s some handwaving to obviously irrelevant provisions of the Constitution (the 10th Amendment merely says that powers not granted to the federal government are retained by the states; since the power to enforce the 15th Amendment was granted to the federal government, it’s irrelevant to this case, and indeed in general is just a “truism” that does no independent work to resolve any particular case.)

Lemieux is right. The legal justifications are thin to nonexistent; but even the nonlegal argument is weak. Much of the coverage in the media about the Shelby decision has cited Roberts' view that "things have changed dramatically" and that we are a different country now from 1965 and that the federal government may not use old information and notions to punish the states and counties on the preclearance list; the majority demanded that Congress should come up with a new, presumably more contemporary formulas, for determining which counties/states fall under the provision.

That sounds like an attempt at a social science argument to me, not a legal one. Moreover, even if one accepts that the Court majority may use non-legal arguments, it's a bad argument. The majority cites voter registration and turnout numbers among African Americans is higher thanks to the VRA act. Well geez, I'm sure if you compared Shelby County's registration and turnout pre-post VRA enactment, yeah, you'd find a dramatic difference. But where is the statistical data about voter suppression complaints and specifically the data of complaints in those counties/states covered under Section 4 in comparison to counties/states NOT covered under Section 4. THAT would be the relevant data to cite.

Third, and this aspect particularly bothers me as a political scientist who studies legal institutions, the Court majority's move here is undemocratic or in the political science lingo, countermajoritarian.  In one fell swoop, the Supreme Court majority overturned the overwhelming will of multiple democratically elected institutions. Just for some institutional context, in 2006 no Senators voted against the VRA renewal and 33 House members voted against it. VRA has been a bipartisan effort with, most recently, Presidents W. Bush and Reagan signing renewals. Now 5 conservative white men have upended that effort, knowing that throwing it back to a bitterly divided Congress will make it far more difficult to recover the protections of the Act.

Countermajoritarianism is an epithet often hurled at the Supreme Court given the fact that it can, and in Shelby, it did, overturn the will of democratically elected bodies and multiple presidents.  And yes, yes, by reading Federalist 78,  and Carolene Products FN 4 we all know why the federal courts consist of men and women with the protection of life tenure.  But this is Carolene Products FN 4 in reverse.  The Court majority, protected by life tenure, is removing, not granting protections to a "discrete and insular" minority group and subjecting them to the vagaries of a democratic process that has repeatedly failed them in the past.  

Roberts says that the ruling does not invalidate preclearance, it just throws it back to Congress to come up with a more contemporary formula.  This move is disingenuous.  Even citizens with a passing interest in politics these days know how polarized and gridlocked the Congress is.  Minorities at the mercy of counties and states who discriminate are now supposed to rely on the national Congress that failed to pass gun legislation even after children were massacred and who failed to pass the Farm Bill by defying their party leadership?  As Senator Chuck Schumer (D-NY)  bluntly put it, "As long as Republicans have a majority in the House and Democrats don’t have 60 votes in the Senate, there will be no preclearance." The Lilly Ledbetter Fair Pay Act was the last act I can recall in which a bipartisan Congress successfully pushed back on a Supreme Court decision they did not like.  That situation though, is extremely rare, especially in the present political climate.

The only good thing coming out of this decision is that it makes my job of teaching that "judicial activism" is an equal opportunity offense committed by both liberals and conservatives.  Shelby was a decision that lacked doctrinal justification, really any valid justification, and it overturned bipartisan elected bodies and that's why it stinks.