Retired Justice John Paul Stevens is 93 years old and still his mind is as sharp as a tack. In a book review of Gary May's Bending Toward Justice, he uses the opportunity to criticize the Supreme Court's decision in Shelby County v Holder, the Voting Rights Act case that was just decided this term in which the central plank of the VRA is eviscerated.
Stevens uses the review essay to highlight the permutations that voter suppression efforts can take and to tweak the Shelby majority's contention that things have changed dramatically:
In the prologue to his book, May identifies two important consequences of the VRA: it ended a half-century of practices that prevented African-Americans from exercising their right to vote, “and it transformed American politics by turning a once-solid Democratic South into a Republican stronghold.” With respect to the first consequence, he expresses concern that even though the circumstances that gave birth to the act may not have an exact parallel today, their echoes can be found in more subtle and insidious efforts to prevent blacks from voting. He describes his concerns at length in the final chapter of his book where he criticizes photo ID laws and notes that an analysis of Obama’s election demonstrates that race remains a divisive issue—pointing to the fact that in Alabama in 2008 Obama received only 10 percent of the white vote.
Stevens makes clear he thinks the Shelby majority has erred on multiple levels, and one of the biggest sins is that the Court was acting in an anti-democratic fashion. He writes:
The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.
Finally, Stevens raps up his complimentary review of May's book by pivoting and using Justice Scalia's dissent in U.S. v Windsor to hoist the Shelby majority on its own petard. This is the passage Stevens cites from Scalia's dissent in U.S. v Windsor to underscore point that the majority in Shelby overreached and should have left the issue to the electoral process:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
Stevens concludes by saying, "The 'diseased root' that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case." Exactly which ideological wing of the Court is being activist now?
As a member of the Supreme Court, Stevens was known for his ability to put his finger on the essential points without getting bogged down with obfuscating legalese and irrelevant minutiae. His no nonsense and elegant style are on display in this review essay. Reviewing a book while skewering the Shelby majority, in the process using Scalia's own words against him--not a bad day at the office for a 93 year old.