My Things To Come post got a modest response. Let’s try for more, considering ‘How Things Have Changed Dramatically’.
So here’s your nickel summary. If a law is passed on a party-line vote, has no justification in the historical record, and is highly likely to harm black voting, that’s OK as long as the legislature in question can whomp up some kind of neutral-sounding justification. Judicial restraint is the order of the day. But if a law is passed by unanimous vote, is based on a power given to Congress with no strings attached, and is likely to protect black voting, that’s prohibited unless the Supreme Court can be persuaded that Congress’s approach is one they approve of. Judicial restraint is out the window. Welcome to the 21st century.
I will be curious to see whether this decision gets cited as precedent in future. The implications, potentially, seem so enormous I wonder whether they will simply be overlooked. (I realize this often happens when philosophers read legal decisions: we see all manner of absurdity that is papered over in practice by a lot of stuff we don’t understand – some of it other nonsense, put in place so the nonsense we see doesn’t cause trouble; some of it good sense we, who didn’t go to law school, don’t happen to be in the know about.) It seems to be the case that the Supremes have over-ruled Congress exclusively on the grounds that the South has changed more than Congress gives it credit for. “Section 4’s formula is unconstitutional in light of current conditions” (3) [emphasis mine]. “Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to pre-clearance” (3)” [emphasis mine]. That second one is more ambiguous. That might be taken to mean: after today. But, in light of the rest of the decision, this statement seems intended as a descriptive account of a development in the recent past, post-1965 but pre-decision. Section 4 wasn’t born un-Constitutional, but grew into something un-Constitutional as society changed around it. Congress finds itself standing in a place it could only get to by overstepping, without having overstepped, due to political-societal-cultural ground itself having shifted. That’s not an incomprehensible or paradoxical claim. But it’s hard to imagine a more fertile basis for a ‘living Constitution’ approach than the blanket proposition that any time the Supremes think “things have changed dramatically” (p. 3), they get to tell Congress what new thing to do – or not do – that is ‘fair’, by the judges’ lights.
Now that’s living!
They are going on about the equal dignity of the states, which sounds like a fine thing – although I think it isn’t a phrase that occurs in the Constitution? (Am I wrong?) But in this context it also sounds like a whole lot of not nearly enough, what with separation of powers. Any time something ‘unfair’ happens the equal dignity of someone or something is getting trodden, in some sense. (It very rare that everyone suffers equally from a lousy law, probably) That doesn’t mean any time the Supremes think Congress has made a bad law, the Supremes get to step in and call foul. That’s kind of rule one. It seems like the Supremes are applying a very high, rational-basis-with-extra-bite standard. It’s not enough that Congress be exercising powers it is acknowledged to have in a way that might make possible sense. It has to be a ‘good’ law – effective and ‘right’? But they can’t possibly apply that standard of judicial review to everything Congress does. So what is the elevated standard they are holding Congress to, in this case, and what class of cases need to meet this elevated standard, not just the usual ‘pass an ineffective or counter-productive law if you want’ bog-standard rational-basis test?
I’m reasonably sure the Supremes cannot have given themselves total dominion over the legislative branch. (Scalia is not laughing, mirthlessly, and congratulating himself on having finally acquired ‘the Shelby gem’ for his Infinity Gauntlet. ‘Now I have infinite power to crush judicial activism anywhere in the universe, including Congress!’) But I’m at a loss to see why, as precedent, this isn’t a major power grab.