Shelby County and the Illusion of Minimalism
Richard L. Hasen, Shelby County and the Illusion of Minimalism, 22 Wm. & Mary Bill Rts. J. 713 (2014).
Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to determine which states and local governments must submit any proposed voting changes for federal approval (or “preclearance”) under Section 5. According to the majority, by failing to amend the VRA to update the coverage formula after the Court raised constitutional doubts about preclearance in the 2009 NAMUDNO case, Congress “leaves us today with no choice.” “Striking an Act of Congress ‘is the gravest and most delicate duty that this Court is called on to perform.’” The majority held that the coverage formula renewed by Congress without change in 2006 failed to take into account “current conditions” of discrimination in covered jurisdictions and failed to treat states with the “equal sovereignty” they deserved under the Tenth Amendment. Rather than strike down section 5, as Justice Thomas would have done, the Court “issue[d] no holding on § 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions.” The short opinion for the five most conservative Justices on the Court - only two-thirds the size of Justice Ginsburg’s dissent for the four most liberal Justices - casts itself as adhering to precedent, reaching a result compelled by stare decisis and inevitably flowing from NAMUDNO. The majority ostensibly stands ready for Congress’s next step.
Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula.
But the opinion is minimalist in a difference important sense as well: its brevity seeks to mask major doctrinal and jurisprudential change. By writing a very short opinion and avoiding a discussion of the Fifteenth Amendment’s history and how the Court silently resolved a dispute over the applicable standard of review, the Court tried to hide the major jurisprudential hurdles it jumped to reach a political decision. The opinion, relying on a new and unjustified “equal sovereignty” principle, demeans the strength of Congress’s power to eradicate racial discrimination in voting, sidestepping a key standard of review question raised but not resolved in NAMUDNO regarding how much deference the Court owes Congress acting under its Fifteenth Amendment enforcement powers. The opinion’s brevity is an insult, not an act of modesty. As Justice Ginsburg remarked in dissent, “Hubris is a fit word for today’s demolition of the VRA.”
Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters' story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention, and which were amply covered by a Senate report written by Republican committee staffers who were deeply skeptical of the Act’s continuing constitutionality. While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court.
Part I briefly describes the background of the Shelby County case, and in particular the questions left open in NAMUDNO. Part II analyzes the majority opinion, and explains the opinion as an act of false minimalism. Part III analyzes the dissenting opinion, and explains the dissent as one willfully silent about difficult constitutional questions. In the end, the dissenters had the better argument about the Act’s constitutionality, but the dissent would have been stronger had it described and grappled more forthrightly with the struggles over the VRA’s renewal and the dangers of political avoidance. Shelby County is important not just for the loss of preclearance, but the diminution of congressional power over voting rights in the future.