The
Chief Justice on the Spot
A CASE sitting quietly in the Supreme Court’s in-basket promises to tell us more than almost any other about John G. Roberts Jr. and his evolution from spear carrier in the Reagan revolution to chief justice of the United States — and in the process set the direction of the debate over race and politics for years to come.
The question is whether Congress acted within its constitutional authority two years ago when it extended a central provision of the Voting Rights Act of 1965 for 25 years. An appeal challenging the act’s reauthorized Section 5, a provision that requires certain states and localities to receive federal permission before making any change in election procedures, awaits the justices when they return today from a holiday recess.
On the surface, this case appears an unlikely judicial bellwether. Extending the life of the “preclearance” provision, considered one of the civil rights movement’s crowning legislative accomplishments, is hardly novel. This was the fourth extension, in fact, and the second for a 25-year duration; the Supreme Court, which upheld the original Voting Rights Act in 1966, approved an earlier extension of Section 5 in 1980.
Nor does the issue appear fueled by the partisanship or ideological divisions that the current Supreme Court so often mirrors. The latest extension passed the Republican-controlled Congress overwhelmingly in 2006. President Bush promptly signed it into law, and a special panel of three federal judges upheld it last May.
Given all that, what about this case makes it a potentially defining moment for Chief Justice Roberts?
To answer that question requires seeing the appeal, Northwest Austin Municipal Utility District No. 1 v. Mukasey, for the politically charged case it really is. The seeming unanimity that greeted the extension of Section 5 in 2006 was a facade, masking deep divisions over whether to continue requiring all or parts of 16 states, most in the South, to receive Justice Department or federal court permission before moving a polling place or changing a registration deadline. Was a measure approved 40 years ago as a remedy for the suppression of minority votes still appropriate?
Many Republicans, most notably some Southern senators, thought not. But they allowed the extension to pass on the assumption that the Supreme Court would eventually answer the question, relieving them of the political cost of dismantling an iconic statute. Days after the extension became law, the anticipated legal challenge was filed by a well-connected Texas Republican lawyer representing what is surely one of the most obscure jurisdictions to be covered by Section 5, a sewer district that serves 3,500 residents of Travis County, Tex.
The Republicans understood recent trends at the court to be working in their favor, and they may be right. The case serves up to the court a fascinating brew of two of the most freighted issues in constitutional law, race and federalism — or, to put it another way, individual rights and constitutional structure.
The Roberts court has yet to come to rest on either, but this case will force it to do so: Voting Rights Act cases have a special provision that requires the Supreme Court to decide them. The court can’t do what it does with 99 percent of the cases that reach it and simply deny review without comment. The chief justice will have to show his hand.
In cases dealing with race, he already has. “It is a sordid business, this divvying us up by race,” he complained in a Texas redistricting case in 2006. The next year, he wrote an opinion rejecting a plan by which the school system in Louisville, Ky., sought to preserve the hard-won gains of integration by assigning students to schools based on race.
Because the Louisville schools had been released seven years earlier from decades of federal court supervision, the chief justice said the district no longer had the “compelling interest” that justified any use of race to keep the schools integrated. It was a position so extreme that Justice Anthony M. Kennedy, who is skeptical of all race-conscious government policies and agreed that the Louisville plan was unconstitutional, refused to sign the opinion.
The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments.
While previously Congress could do almost anything in the name of protecting individual rights, the new doctrine requires it to demonstrate a “congruence and proportionality” between violation and remedy. The appeal now before the court argues that the extension fails that test, given “the utter absence of any present-day pattern of unconstitutional voting-rights deprivations of the type Section 5 was originally designed to address.” The measure’s defenders argue in response that because the law serves to deter just such violations, the Texas sewer district is trying to blame Section 5 for its own success.
The Roberts court has not resumed the Rehnquist court’s federalism battles, and the chief justice’s own views are unclear. But he does not come as a novice to the debate over the Voting Rights Act. As a young lawyer in the Reagan Justice Department, he wrote sharply worded memos on behalf of the administration’s failed effort to block expansion of the act in 1982. Confronted with his paper trail during his Supreme Court confirmation hearing in 2005, he explained that he was simply expressing the administration’s views.
Perhaps. But equally telling may be words written by his predecessor as chief justice. William H. Rehnquist, then an associate justice, dissented from a decision that upheld an earlier extension of Section 5. The law “requires state and local governments to cede far more of their powers to the federal government than the Civil War amendments ever envisioned,” Rehnquist wrote in April 1980. Months later, the 25-year-old John Roberts arrived at his chambers as a law clerk. A 25-year relationship as mentor and protégé ended only with Rehnquist’s death days before his former law clerk was named to succeed him.
The new case, in other words, arrives at the intersection of John Roberts’s past and the Supreme Court’s future.