U of Co. law prof Paul Campos:
But this decision is yet more outrageous. The Constitution was specifically amended in the most explicit possible terms to allow Congress to pass precisely this sort of law, for this precise purpose. The 15th Amendment was enacted to give Congress the power to stop states from discriminating against racial minorities in regard to the right to vote.
So what we have here is a situation in which a war was fought in which 600,000 soldiers died, in large part so that the Constitution could be amended in such a way as to give Congress the power to force the slave states to treat black people like human beings. A century later, Congress gets around to actually using this power, and the law it passes is a remarkable success.
But according to the Roberts Five, it’s unconstitutional for Congress to enforce legislation specifically mandated by the Constitution, because it has carried out its legislative responsibilities too well.
That’s not all. Judge Richard Posner is a Republican and Reagan appointee to the Court of Appeals for the Seventh Circuit in Chicago; he thinks the decision is based on a constitutional principle which doesn’t exist except in Roberts’s mind. He writes that the decision:
struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures—called “preclearance”) as violating the “fundamental principle of equal sovereignty” of the states. This is a principle of constitutional law of which I had never heard—for the excellent reason that, as Eric points out and I will elaborate upon briefly, there is no such principle.
[snip]
The majority opinion in Shelby acknowledges that racial discrimination in voting continues, but notes that the situation has improved since 1965 and that the procedures in the current Voting Rights Act do not make a clean fit with the current forms and pattern of discrimination. Ordinarily however a federal statute is not invalidated on the ground that it’s dated. I hardly think the Supreme Court justices believe (as did Alexander Bickel) that “desuetude” is a constitutional doctrine. And the criticisms of the statute in the majority opinion are rather tepid. That’s why the court’s invocation of “equal sovereignty” is an indispensable prop of the decision. But, as I said, there is no doctrine of equal sovereignty. The opinion rests on air.
Not that any of these opinions matter, of course. The only way this decision can be reversed is by Congress drawing up new rules, and in the current climate that appears to be impossible. Moreover, even if new rules could be formulated, there’s no guarantee they’d satisfy Roberts and his four colleagues when they came back before SCOTUS again, which they undoubtedly would.
No, I’m afraid the Voting Rights Act is toast until there’s a new Congress and a new Court.