Roberts Court misses opportunity to return to constitutional principles

by Nick Dranias
Goldwater Institute
One of the hallmarks of the U.S. Supreme Court under Chief Justice John Roberts is its avoidance of divisive constitutional rulings at all costs. The latest example of this approach is the Court’s decision in Northwest Austin Municipal Utility District v. Holder, which sidestepped a constitutional challenge to the “preclearance” provision of the Voting Rights Act.

Preclearance requires Arizona and a handful of other states to seek permission from the federal government for legislative redistricting. To guarantee federal approval, states have often resorted to gerrymandering–drawing oddly-shaped voting districts to pull minorities from some locations and pack them into others. Preclearance has thereby pervasively promoted race consciousness and minority political segregation as a means of enforcing equal voting rights.

In Northwest Austin Mun. Utility Dist., the Roberts Court could have ended preclearance. Instead, the Court avoided these issues by adopting a new interpretation of the term “political subdivision” in the Voting Rights Act.

There may be times when such narrow rulings are appropriate. But this was not one of them. As Justice Clarence Thomas underscored in his lone dissent, the Court’s narrow ruling disregarded the relief sought by the plaintiff in the case, exemption from preclearance. Rather than signaling the end of government-sponsored racialism, the Roberts Court kicked the can down the road.

But opportunities to reform constitutional jurisprudence to conform to the Constitution’s original intent rarely repeat themselves. And with nominees like Judge Sonia Sotomayor on the horizon, the goal of ending legally-enshrined race consciousness is becoming ever more tenuous.

The tragic truth is that the Roberts Court had been on the cusp of overturning state-sponsored racialism on principled constitutional grounds. Instead, it embraced intellectual disarmament in order to achieve a transient judicial consensus.

Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute’s Dorothy D. and Joseph A. Moller Center for Constitutional Government.


  1. kralmajales says

    Something that Nick doesn’t tell you is that the GOP normally fights for these districts…and quite secretly. Here is why…the more racial districts you draw, the more GOP dominated districts are left in the wake. This is well known among political science and history. In fact, when crazy Cynthia McKinney’s district was challenged back in the day, the GOP lawyers and those supporting minority districts came in the court with GOP drawn district maps that in fact supported the crazily drawn districts.

    One reason Roberts and the other GOP appointed crew may have not gone that far….just so you know.

    Example. In Arizona, if you got rid of Grijalva’s district, you would be left with more competitive districts surrounding it…in other words, it would be far far easier for Giffords to stay in office. It would also affects some of the districts up in Maricopa.

    That said, I do think that these districts have a long history. That history was drawing districts in such a way that minority votes were suppressed. At this point, there is no evidence that this would not continue to occur.

  2. James Davidson says

    So, white Democrats are less likely to vote for a Latino or African-American candidate?

  3. Doing what the writer here suggests would have been an example of judicial activism. As Ramesh Ponnoru of The National Review wrote;

    Many conservatives oppose Judge Sotomayor’s nomination because she does not appear to support originalism, the notion that legal texts, including the Constitution, should be interpreted according to the meaning that the informed public assumed them to have when they became law. We argue as well that judges should try to overcome the biases of their backgrounds in the name of self-restraint. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint.

    The Voting Rights Act decision was a case in point. Eight justices avoided weighing in on the constitutionality of the law’s requirement that certain jurisdictions, mostly in the South, get Justice Department permission before making any changes to election procedures. Instead they ruled that a utility district in Texas that wanted to be freed from the provision should have an opportunity to try.

    But Justice Clarence Thomas went further, declaring the provision unconstitutional. Congress, he argued, was justified in the 1960s in responding to the denial of the voting rights guaranteed by the 15th Amendment, but things have changed and the provision is no longer needed.

    Justice Thomas is, in my view, right to consider the law outdated. But is that really for him to say? Congress is the proper body to make that judgment. In 2006, it decided to renew the law for 25 years. Its determination that the law was still necessary may have been mistaken, but it is not clear that the Constitution authorizes judges to second-guess it.

    In fact, none of the justices — not even Justice Thomas, the most originalist member of the court — discussed any historical evidence about what the ratifiers of the 15th Amendment intended. It is hard to believe that, back in 1870, they wished to empower courts to determine which voting rights laws were necessary. The occasion for the amendment was, after all, the end of a civil war brought about in significant part by judicial overreaching in the Dred Scott case.

    This brings us to the case of Frank Ricci, a firefighter in New Haven who in 2003 passed a test to get a promotion, only to see the city throw out the test because black firefighters were not doing well on it. Mr. Ricci sued in federal court and lost.

    Nor did he catch a break from a panel made up of Judge Sotomayor and two of her colleagues from the United States Court of Appeals for the Second Circuit, which heard his appeal in 2007. They upheld the earlier decision with brief comments, apparently seeking to bury the case without considering the legal issues it raised. Mr. Ricci then appealed to the Supreme Court, which is expected to release its decision any day now.

    Mr. Ricci probably deserved his promotion and had a right to his day in court. But contrary to what many conservatives insist, that does not mean he should win the case. The legal arguments for his position, as for the invalidation of the Voting Rights Act, are not absurd: they include reasonable readings of Supreme Court precedent. They just aren’t originalist arguments.

    To conclude that New Haven acted unconstitutionally is to assume that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak. Certainly the conservatives on the Supreme Court have not tried to argue that it did: originalist analysis has been notably absent from their opinions in affirmative-action cases.

    Judicial restraint has also been absent. That virtue is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments. To invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by “judicial activism.”

    In their outrage over the Ricci verdict, I suspect, conservatives have gotten carried away by their laudable fervor against race-conscious policies. But we on the right, of all people, should know that not every wrong has a judicial solution. Conservatives are moved, as well, by their empathy for the Frank Riccis of the world. When President Obama has talked about empathy on the bench, conservatives have responded that, given free rein, it can lead judicial reasoning astray. On race, unfortunately, we are illustrating our own point.

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