SCOTUS Dissents Prove Prophetic

Often, a shorthand method to appreciate a decision of the US Supreme Court is to read the dissents. In 1857, a majority opinion held that

    a Negro, whose ancestors were imported … and           sold as slaves, whether enslaved or free, cannot           be an American citizen…. [Dred Scott v. Sandford]

There were two dissents in the case, one asserting that no basis existed for the claim that Dred Scott was not a citizen since 5 of 13 states permitted black men to vote. One of the dissenters resigned from the bench, in part due to the decision.

About 50 years later, in 1896, another justice issued a dissent in opposition to the majority opinion that separate but equal public facilities are constitutional, concluding:

The judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. [Plessy v. Ferguson]

 It was nearly 60 years after Plessy, in 1954 [Brown v. Board of Education] that SCOTUS determined that separate-but-equal was inherently unequal as a matter of law and public policy in a unanimous decision.

Voting rights in the United States have had a longer trajectory—nearly 100 years—from the post-Civil War amendments [13th, 14th, and 15th], adopted 1865–70, to passage of the Voting Rights Act (VRA) in 1965. VRA targeted nine states, mostly in the South, primarily because they engaged in numerous tactics to deny or impede voting—Jim Crow laws, poll taxes, literacy tests, grandfather clauses, tests of moral character, among others. Under a 9th-and 10th-amendment analysis, SCOTUS upheld most of these barriers, asserting that the judiciary did not have the authority to intercede.

VRA proved reasonably effective in diminishing the efforts of the states to restrict voter access for nearly 50 years, until 2013. In Shelby County v. Holder, a 5-4 majority found that VRA’s provisions were dated and under the 10th Amendment,

The conditions that originally justified these measures no longer characterize voting in the [nine] covered jurisdictions.

Led by Chief Justice John Roberts, the majority noted that VRA imposes current burdens and must be justified by current needs. Congress had voted to reauthorize VRA on five occasions, the last in 2006. Without more, the majority opined, voting tests had been abolished, disparities in voter registration and turnout due to race were erased, and African-Americans had attained office in record numbers. While these statements might be true, they are, in essence, mere observations, not evidence of the eradication of voter discrimination, nor recognition of other discriminatory conduct, e.g., against Hispanic voters.

The majority further observed that the current record does not show anything approaching the ‘pervasive’, ‘flagrant’, ‘widespread’, and ‘rampant’ discrimination faced by the nation in 1965 and which distinguished the nine jurisdictions from the rest of the states. The dissent in Shelby was led by Justice Ruth Bader Ginsberg, who offered two reasons to continue the provisions of VRA:  “continuance would facilitate the completion of the impressive gains already made; and, secondly, continuance would guard against back sliding.”

Moreover, Ginsberg continued, the five reauthorizations by Congress in overwhelming votes represent the legislative judgment that the purpose of the act remains of current concern:

As the record for the 2006 reauthorization makes abundantly clear, second generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for first generation barriers.… The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that [the protection] is no longer needed.… With that belief, and the argument derived from it, history repeats itself.

Among second generation barriers, the capability of legislatures to draw district boundaries with advanced technological methods has become one of the substitutes mentioned by Justice Ginsberg. Two recent cases of gerrymandering fall into this category: In June 2018, a federal district court directed the Virginia legislature to redraft new boundaries in some congressional districts because the ones in dispute had been racially gerrymandered. And in North Carolina, a federal district court ordered the drawing of new congressional districts because the legislative map originally prepared violated a number of well-established constitutional standards based upon the evidence produced by the plaintiffs.

One or both of these cases may be heard by SCOTUS. Will Notorious RBG’s dissent remind the members of the Court of the history of discrimination in voting? 



Categories: Issues

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