Voting Rights Cases Make This Supreme Court Squeamish
(Bloomberg Opinion) -- Yesterday’s Supreme Court arguments in a major voting rights case portend what appears to be the future of election law: The continuing withdrawal of the court from the role of policing elections for racial fairness. Call this the Roberts Doctrine.
The chief justice has been pushing the agenda of judicial disengagement from voting rights issues since 2012, when he wrote a landmark decision in the case Shelby County v. Holder, striking down section 5 of the Voting Rights Act of 1965. The new case, out of Arizona, addresses Section 2 of the same act. The court may well be poised to weaken that part of the law to make it harder to challenge a state’s voting practices as racially discriminatory. If it does, this will continue the judicial pullback from a role the courts have played since 1964, when the Supreme Court established the principle of one person, one vote.
The Roberts Doctrine reflects the chief justice’s particular jurisprudence, one profoundly influenced by the thinking of the late Justice Felix Frankfurter, who retired from the court in 1962 and died in 1965. Frankfurter was the father of the modern doctrine of judicial restraint.
When Roberts follows Frankfurter in declining to strike down legislation, as he partly did in the Affordable Care Act case, liberals like it. When he follows Frankfurter in restraint around election law challenges, as he did in rejecting former president Donald Trump’s judicial challenges to the 2020 election results in Pennsylvania, liberals applaud that, too.
But Frankfurter’s judicial restraint also included a deep skepticism around the courts’ capacity to intervene in voting rights issues. In his own mind, Roberts followed that approach in the Shelby County case. He may do so in the Arizona case. And here, liberals will reject his approach — as indeed liberals rejected Frankfurter’s approach in his era.
The basic idea of voting rights restraint is that elections are inherently competitive political battles — and that there is no neutral way for courts to intervene that doesn’t favor one side or the other. The argument is that courts shouldn’t be drawn into the “political thicket” — a place where they will get stuck and not be able to get out. (I think the image must be drawn from a scene in the Bible in which a ram whose horns have gotten tangled in a thicket gets sacrificed.) If courts rule on election matters, runs the theory, they will end up undercutting their own legitimacy by seeming to side with one political party.
Seen from that perspective, the case of Bush v. Gore -- the low point for the court in the last quarter century — was a natural result of what happens when the court messes with election results. For Roberts, no other decision has comparably delegitimized the court during his adult memory. He wants to avoid any future such disasters. He wants the public to see the justices as neutral umpires, as he famously said during his confirmation hearings. Getting the court out of the business of election law is his method for avoiding more Bush v. Gore-style intervention scenarios, the kind Trump was asking for after the 2020 election.
The counterargument to judicial restraint is that the courts are the best way to ensure that elections are conducted fairly — and that racial discrimination doesn’t taint our democracy. The one person, one vote decision, Reynolds v. Sims, set the stage for the courts to take this role. The case became iconic, stating a principle that is foundational to modern American democracy. Frankfurter was already retired when the court decided it, but there is reason to think he would have dissented on the ground that the court was entering the political thicket.
The Voting Rights Act of 1965 specifically put the judiciary into the role of policing electoral fairness that Frankfurter had wanted it to resist. The most powerful critique of the Roberts approach to election law is that he actually isn’t exhibiting Frankfurterian judicial restraint, because Frankfurter believed the courts should defer to the legislature — and the legislature passed the Voting Rights Act. In striking it down in the Shelby County case, critics accurately point out, Roberts was actually being a judicial activist.
When it comes to the current Arizona case, however, the question is more subtle. At issue is really how the courts should interpret Section 2 of the Voting Rights Act when it comes to finding that racial discrimination exists. Is an election restriction that disproportionately affects Black people unconstitutional if it was adopted not to disenfranchise Black people, but to hurt Democrats? Or is that a distinction without a difference?
The 2020 election heralded an era where both parties are going to use turnout measures as proxies for winning. Republicans are going to pass laws making it harder to vote and Democrats will champion methods making it easier. While the desire to stay out of the political thicket and avoid another Bush v. Gore is a valid one, I know where my instincts lie: with enabling people to vote, the way they are supposed to in a democracy.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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