Seventy-five years ago, a plurality of the Supreme Court in an extraordinary footnote to a rather ordinary case announced a new theory of judicial review. Under this new theory, the Supreme Court would closely scrutinize both laws that imposed restrictions on the ordinary operation of the political process and laws that discriminated against discrete and insular religious, national, or racial minorities. The underlying premise of this theory of judicial review was that democratic actors could not be trusted to either maintain an open and inclusive political process or to protect the rights and defend the interests of politically marginalized minorities. The Court simply presumed that the democratic process did not operate properly. This democratic dysfunction arising from a tyranny of the majority meant that democratic rights and the rights of the politically marginalized were entitled to special judicial protection from the majoritarian processes.
It was this judicial presumption about the dysfunction of politics that seemed to animate the asymmetrical treatment of congressional authority to enforce the Fourteenth Amendment in the 1960s. So long as Congress used its power to enhance the equal protection rights, and particularly the voting rights, of racial minorities, the Court gave great deference to its actions. But if ever it were to decide to use this power to dilute the equal protection rights of these minorities, the Court announced that the laws would not be treated with the same deference. Instead, such law would likely be subject to intense scrutiny and ultimate judicial invalidation. The lesson of this era seemed to be that democracy could not be trusted to protect minorities and their political rights.
As the Supreme Court prepares to hear oral argument in Shelby County v. Holder, a different form of democratic distrust seems to have emerged in Supreme Court doctrine. Minorities such as lesbians and gay men that would have been considered politically marginalized are now viewed as too politically powerful. Laws that benefit racial minorities are suspected to be the product of racial politics that democratic actors adopt to please the organized and important racial constituencies. And perhaps most relevant to the case of Shelby County, a Congress once given great leeway to enhance the equal protection rights of minorities through its Fourteenth Amendment enforcement authority, now has similar actions subject to much more rigorous scrutiny in the form of a congruence and proportionality test.
Most of the attention so far has been directed at the separation of powers and federalism underpinnings of the Court’s new form of scrutiny of Congress’s enforcement powers. And these underpinnings will be the source of the rhetoric that the Court uses if it chooses in Shelby County to strike down Section 5 of the Voting Rights as exceeding congressional authority. But separation of powers and federalism does not explain why more rigorous scrutiny is considered appropriate now and not then. Instead, what the cases decided since the inauguration of the congruence and proportionality test in the late 1990s reveal is a particular pattern that reflects the conservative members of the Court’s adoption of a new conception of politics. As it has with respect to laws seen to benefit gay men and lesbians and racial minorities, conservative members of the Court have closely scrutinized congressional actions to advance the interests of the aged, the disabled, and women through its enforcement authority. One can surmise that implicit within the decision to rigorously scrutinize congressional enforcement authority is a judicial concern that these ostensibly organized, powerful groups had captured the political process to advance their interests.
Section 5 of the Voting Rights Act, as a law advancing the political rights of racial minorities, will likely not be immune from rigorous judicial scrutiny or the underlying conception of politics that animates it. The Court laid the groundwork for such scrutiny four years ago in its decision in Northwest Austin Municipal Utility District No. 1 v. Holder when it suggested that Congress’s decision to re-authorize Section 5 of the Voting Rights Act raised serious constitutional questions. Presumably these questions would not have been raised under the deferential judicial scrutiny of congressional enforcement power of the prior era. But for the current Court, the goals of the Voting Rights Act have seemingly been accomplished. African Americans register and vote at a rate nearly equal to that of whites. Entirely ignored in NAMUDNO was the ongoing threat to minority representation in the political process arising from vote dilutive districting practices and racially polarized voting.
For many scholars and commentators, this omission came as a surprise given that since 1969 protecting the opportunities for minorities to secure representation in the political process has been a major focal point of Section 5 enforcement and re-authorization. However, once the Court’s evolving conception of politics is accounted for, it starts to become less surprising. If racial minorities are considered to be the organized and influential constituency that the Court seems to presume about discrete and insular minorities, it is no longer necessary for Congress to protect their representational rights beyond the vote. In fact, to the extent that Section 5 protects and advances these representational rights, the Court’s evolving judicial conception of politics suggests that such actions should be subject to suspicion as racial politics designed to please an organized and important racial constituency.
It is against this backdrop of a conservative judicial concern about the political power of minority groups that Shelby County will be decided. The briefs in support of the government’s position argue persuasively that Section 5 should be upheld as a proper exercise of congressional authority on the basis of the comprehensive and voluminous record about racial discrimination in voting that Congress compiled to support the re-authorization of the Act. A Supreme Court deciding this case twenty years ago wouldn’t second-guess these well-supported congressional determinations. But while the rhetoric in the opinion might suggest that it does, Shelby County will not turn on whether Congress has compiled enough evidence in the record to support its law. Instead, it will turn on how much the conservative members of the Court trust the democratic process that produced the law.