RBG Shines in Dissent

Editors’ Note: Adapted from Vox, September 18, 2020.

One of the most compelling examples of the late Supreme Court Justice Ruth Bader Ginsburg’s devotion to equality and the rule of law is her dissent in the 2013 case Shelby County [Alabama] v. Holder. 

The Voting Rights Act of 1965 was a seminal civil rights bill that dismantled much of the Jim Crow laws that dotted the South. As originally enacted, the Voting Rights Act required jurisdictions with a history of racist voting discrimination to “preclear” any new voting-related laws with the Justice Department or with federal judges in Washington, DC. But this preclearance provision was initially scheduled to expire five years after the law was signed in 1965. That meant that in 1970, while Richard Nixon was president, Congress had to decide whether to extend the preclearance requirement or allow it to expire. And, because Congress never made the preclearance requirement permanent, Congress also chose to extend this requirement again in 1975, in 1982, and in 2006.

Each time the Voting Rights Act was renewed, it was signed by a Republican president — including at least two Republicans who’d previously criticized the law. Conservative Republicans and Southern Democrats often attempted to weaken the act during congressional debates over renewal, but they were repeatedly outflanked by liberal lawmakers and by civil rights advocates.

Shelby County v. Holder, in 2013, was the case in which the [Chief Justice John] Roberts Court finally quashed preclearance. 

Roberts’s majority opinion in Shelby County posits that the United States simply isn’t racist enough to justify a fully operational Voting Rights Act. Preclearance — requiring states to get federal permission before changing their own voting laws — was an “extraordinary” measure adopted to “address an extraordinary problem,” Roberts claimed. Yet, nearly a half-century after the Voting Rights Act first became law, “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions” [emphasis added]. Black voter turnout “has come to exceed white voter turnout in five of the six States originally covered, Roberts claimed.

Preclearance worked. So there was no longer any need for it.

Justice Ginsburg would have none of it:

“Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” 

In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.

Her dissent continued for another 10,000 words, excluding notes, and was joined in by Justices Breyer, Sotomayor, and Kagan.



Categories: Issues, Local, National, politics, State, VOTING RIGHTS

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