How Full Is That Glass? Reflecting on Voting Rights, Employment Discriminiation and Gay Marriage
Posted by Peter M. Shane on June 27, 2013
Justice Kennedy’s opinion in United States v. Windsor immediately and deservedly now enters the canon of momentous Supreme Court human rights decisions. Historians and others will likely debate whether the Court’s disposal of the Prop 8 case on technical standing grounds — allowing same-sex marriage to proceed in California, but imposing no constitutional constraint on other states — was or was not the optimal outcome. The more optimistic view, of course, is that the Court’s restraint preserves the momentum of the gay rights movement without triggering the kind of political backlash that might have been engendered by a 5-4 decision holding prohibitions of same-sex marriage unconstitutional.
The political force of the Windsor and Perry cases, however, will be diminished by the Court’s evisceration of the Voting Rights Act in Shelby County v. Holder. A five-Justice majority held, in effect, that Congress could not constitutionally maintain a scheme designed to prevent and remedy racially discriminatory voting practices in the South because that scheme has apparently been successful in preventing and remedying at least some racially discriminatory voting practices. That conclusion, devastatingly refuted in Justice Ginsburg’s blistering dissent, is — to use her word — a stunning act of judicial “hubris.” The Fourteenth and Fifteenth Amendments explicitly give primary authority to Congress, not the Court, to determine the appropriate enforcement of their majestic guarantees. The Court’s determination that Congress just didn’t think hard enough about voting rights in 2006 to justify its latest extension of the Voting Rights Act is preposterous.
Shelby County also puts into context Justice Scalia’s vituperative DOMA dissent. He decries the Court’s “exalted conception” of its role in American life. He “promises” his readers that “T[he only thing that will ‘confine’ the Court’s holding [on DOMA vis-a-vis the larger question of same sex-marriage] is its sense of what it can get away with.” “It takes real cheek,” Scalia writes, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here–when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”
What makes this bluster so repugnant is that its author had no problem overturning a congressional act intended to preserve individual rights — the Voting Rights Act — that has been repeatedly and vigorously debated, was supported by successive bipartisan majorities in the national legislature, and which deprives not a single human being of life, liberty, or property. His fulmination, on the contrary, is on behalf of a statute that effectively did deprive married members of a political minority — men and women lawfully married under the laws of their respective states — of federal benefits potentially critical to their health and welfare.
It is also repugnant because Shelby County, in its determined obliviousness to America’s racial history, is of a piece with another Roberts decision Scalia supported — Parents Involved in Community Schools v. Seattle School District No. 1. In that 2007 case, a 5-4 Court held unconstitutional two school districts’ voluntary efforts to accomplish actual racial integration based on a reading of Brown v. Board of Education that was positively Orwellian. In Chief Justice Roberts’s world, the nastiness of racism is a thing of the past, apparently to be remedied on that rare occasion it may raise its ugly head only through case-by-case litigation, in which the laws of inertia clearly favor defendants, not targets of discrimination.
But it is important to see the DOMA and VRA cases, along with the week’s other civil rights decisions, in the same frame for yet another reason. The Court’s voting rights decision has now made it much harder for Democratic voters in the Deep South to achieve more progressive political representation.
Consider that the Supreme Court has now effectively left the definition of marriage for the determination of individual state legislatures. Likewise, in two employment discrimination cases this week, the Court has left it to Congress, our national legislature, to undo the Court’s ridiculously narrow understandings, respectively, of who qualifies as an employee’s supervisor and when retaliatory action against a sexual harassment claimant ought be actionable.
But, if Republican-controlled state governments in the South now wish to change their electoral systems to entrench their control of state government or to preserve a disproportionate share of their respective state delegations in Congress, it will be much easier to do so. As a formal matter, they will still be legally forbidden to adopt practices with the intent or effect of discriminating by race. Yet that legal guarantee will no longer be enforced through an efficient administrative process by the Justice Department. Individual voters, at their own expense and shouldering the burden of proof in litigation, will typically have to take the initiative (and the years of effort necessary) to challenge those practices. It won’t be pretty. Inertia again favors the bad guys, which is exactly what the Voting Rights Act sought to prevent.
In the Windsor and Perry cases, the Court has given Americans much to cheer. The Court has also left much, however, to a political process that the Court has befouled by taking the side of state rights against actual democracy.
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