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Friday, June 01, 2012

Judicial Deference to Congressional Judgments and the Voting Rights Act

The DC Circuit’s split decision in Shelby County v. Holder upholding the constitutionality of Section 5 of the Voting Rights Act has teed up what is presumably a good vehicle for the Court to return to that issue after its near-confrontation in Northwest Austin Mun. Util. Dist. No. 1 v. Holder in 2009.  If the circuit court’s decision is any hint, any Supreme Court decision on the fate of Section 5 is going to turn heavily on how much deference it is willing to give Congress’s predictive judgments about the continued necessity for Section 5 generally, and for its discrimination between covered and non-covered jurisdictions.

The Court’s Enforcement Clause jurisprudence more generally has featured the Court considering whether Congress has identified a record of unconstitutional conduct relevant enough and serious enough to justify the remedial legislation at issue.  Indeed, it was the practice of engaging in that review that at least ostensibly convinced Justice Scalia to abandon the congruence and proportionality test in Tennessee v. Lane, an abandonment he repeated a couple of months ago in Coleman v. Maryland Court of Appeals.  In Shelby County Judge Tatel’s majority opinion relied heavily on deference to what described as Congress’s “predictive judgments” about the continuing need for Section 5 as currently tailored.  Judge Williams' dissent was much less impressed with the deference argument.  He argued that any such deference would be inappropriate for what he described as the relevant part of the congruence and proportionality inquiry: "whether Congress's remedy 'fits' the proven pattern of discrimination."

In a way, this disagreement reflects a basic component of deference inquiries.  As scholars such as Neal Devins have noted for a while now, the deference question can only be analyzed in the context of the underlying doctrine governing judicial review of the challenged statute.  In other words, deference may be called for, or not, in a given case based in part not on the abstract question whether the findings merit deference, but rather on the broader doctrinal implications of granting or withholding it.  (My own thoughts about the deference question more generally can be found here.) If that's an accurate description of what courts do -- in particular what the Supreme Court does -- then there's good reason to think that the current Court, which has already expressed serious reservations about Section 5, may not give Congress's judgments much leeway here.  This may be especially the case if a majority is suspicious -- as Judge Williams was, citing Justice Kennedy's concurrence in Georgia v. Ashcroft -- that Section 5 may not only exceed Congress's enforcement power but itself violate constitutional principles found in the Fourteenth, Fifteenth and Fifth Amendments.  If a majority already has this suspicion, it is presumably going to be much less likely to defer to Congress's "predictive judgments" about the necessity of Section 5 to implement the Fourteenth and Fifteenth Amendments.

Posted by Bill Araiza on June 1, 2012 at 03:01 PM in Constitutional thoughts | Permalink

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