The Voting Rights Act, Antonin Scalia, and the Right’s “Judicial Activism”

If—when—the United States Supreme Court strikes down part of the Voting Rights Act, sometime in the next couple of months, I promise you one thing: I never want to hear a conservative complain about “judicial activism” ever again.

Ever.

You remember the term “judicial activism” don’t you? In the hands of Republicans—and, well, just about everybody who has ever used it—the term means pretty much one thing: “A court ruling I don’t like.” Mostly, it’s a meaningless bit of political sloganeering, devoid of any substance but designed to sound as though the speaker really has been weighing the pros and cons of some arcane legal matter.

Back when the term meant something, though, it usually boiled down to one of two, often-related criticisms, usually made by conservatives:

• That the judicial branch basically revises the Constitution from the bench, illegally amending our governing document by interpreting it to include rights not explicitly written into it. Think Roe v. Wade: There is no explicit right to abortion written in the Constitution; but if you read it a certain way, you might believe that the right is clearly implied. Good enough for lots of folks, but not for many conservatives.

• That the judicial branch examined a law or an order—whether it be passed by the president, the legislative branch, or a referendum of the people—and decided, Constitution or no, it had a better idea. If—when—the Supreme Court rules to strike down the Voting Rights Act, it’s this kind of “judicial activism” it will be committing.

Consider:

• The 15th Amendment to the Constitution gives Congress the explicit, unambiguous power to pass legislation to ensure that citizens not be deprived of the right to vote because of their race. Period. End of story.

• The Voting Rights Act was passed in 1965 specifically to fulfill that purpose. It gave the federal government explicit power over several states—most, but not all, Southern—and other jurisdictions that had historic problems with racism: Feds had to approve any and all changes to voting procedures in those areas, down to the smallest decision to move a voting location from one church to the church across the street. It’s this provision that is being challenged in court this week.

Conservatives on the court appear ready to strike it down. (None of the conservative majority spoke favorably of the act, at least, during arguments this week.) Why? Not because Congress doesn’t have the Constitutional power to pass such laws but because the conservatives don’t think Congress has acted wisely in continuing to reauthorize the Voting Rights Act in recent years, even as the ugliness of Jim Crow and the Civil Rights Act have faded.

The law was most recently reauthorized in 2006, in fact. The U.S. Senate passed it unanimously! And that, in fact, is Justice Antonin Scalia’s argument against the law during oral arguments this week: If it comes time to repeal the Voting Rights Act, Congress simply cannot be trusted to do so. It’s too popular!

“I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution,” Scalia argued. “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

That’s a political question. And conservative criticisms of “judicial activism” have long held that political questions should be largely settled by the political (that is, elected) branches: The presidency and Congress. Indeed, the conservative argument has often been that it doesn’t matter if those branches make a bad decision; if they have the Constitutional power to make that decision, the courts must sit on the sideline. (Note, I’m not arguing that the Voting Rights Act is an unwise law—I believe precisely opposite—only that, from the court’s perspective, it doesn’t matter.)

Indeed, when Chief Justice John Roberts shocked the world last year by voting in favor of Obamacare’s Constitutionality, that was precisely his rationale.

“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

There you have it. The 15th Amendment is unambiguous in the power it grants Congress. The Supreme Court appears poised to overturn the Voting Rights Act because it doesn’t like the political judgements made by Congress. That’s the textbook definition of “judicial activism.”