Democratic Legitimacy, Shelby County, and DOMA

By Carolyn Shapiro

It has been a busy few days at the Supreme Court. People have been riveted by the Court’s dramatic striking down of a key portion of the Voting Rights Act (Tuesday) and by its equally dramatic rulings striking down the Defense of Marriage Act and declining to reach the merits in the challenge to California’s Proposition 8 (Wednesday).

While there is much to say about all of these cases, here I want to remark on the very different views of the democratic process on display. To begin with, the Voting Rights Act case, Shelby County v. Holder.

Quick summary: Section 5 of the Voting Rights Act requires certain “covered jurisdictions” to get permission (known as preclearance) from federal authorities before making any changes to their voting procedures. Section 4 of the Act provides the coverage formula by which these jurisdictions, mostly but not exclusively in the South, are identified. The rationale behind these provisions is to prevent jurisdictions from using facially neutral changes to impede minorities’ political participation. Most recently, for example, Section 5 preclearance has prevented several states from imposing voter ID requirements—requirements that would apply to everyone but that would have the effect of preventing disproportionate numbers of minorities from voting. Texas has already announced its intention to move forward with such requirements now that this part of the VRA has been struck down.

The Voting Rights Act, first passed in 1965, has been re-enacted several times, most recently in 2006. At that time, Congress did not change the Section 4 coverage formula from its prior reenactment (although changes had been made previously). In Shelby County v. Holder, an Alabama county raised a constitutional challenge to the requirement that it preclear its voting changes. The Supreme Court, in a 5-4 decision written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, and Alito, held that the coverage formula in Section 4 is unconstitutional because it violates a principle of “equal sovereignty” among the states and that Congress did not do a good enough job establishing the justification for distinguishing between the states based on “current conditions.”

I disagree strongly with this reasoning and outcome, and agree instead with the dissent, which argues that the Fifteenth Amendment expressly gives Congress the authority to determine how to protect minority voting rights (more below). But I find it particularly ironic that only one day after the decision in Shelby County does Justice Scalia (joined by Roberts, in part, and by Thomas) make the following assertions in dissent in United States v. Windsor (the DOMA case):

“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power … under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

And this:

“[This case] is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where ‘primary’ in its role.”

Compare this rhetoric to Shelby County. Remember: the Fifteenth Amendment says that “[t]he right of citizens … to vote shall not be denied or abridged … on account of race, color, or previous condition of servitude. And it expressly gives Congress the “power to enforce” this provision “by appropriate legislation.” And Congress has resoundingly chosen to exercise this power. When reauthorized in 2006, the VRA passed by a vote of 333-90 in the House and 98-0 in the Senate. It was signed into law by President George W. Bush, who acknowledged the need for “further work . . . in the fight against injustice,” and described the reauthorization as “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).

Yet the same justices who are passionate in their rhetoric about judicial modesty in Windsor were willing to second-guess these overwhelming congressional majorities and presidential judgment in Shelby County despite the Fifteenth Amendment’s explicit delegation of enforcement power to Congress—constitutional language that, as Walter Dellinger points out, the Shelby County majority does not even mention. (*Update: In fact, the Court does mention the language on pages 2 and 20 of its opinion. But it does not grapple with it in any meaningful way and simply asserts that congressional enforcement must take a back seat to its novel principle of equal sovereignty.)

Perhaps this is all unsurprising in light of Justice Scalia’s claims at oral argument in both Shelby County and in an earlier case (NAMUDNO v. Holder) that the very fact that the 2006 reauthorization passed so overwhelmingly is evidence of its antidemocratic character. Professor Pamela Karlan recently highlighted the following exchange in the NAMUDNO argument:

Justice Antonin Scalia: . . . What was the vote on this 2006 extension—98 to nothing in the Senate, and what was it in the House? Was—
Mr. Adegbile: It was—it was 33 to 390, I believe.
Justice Scalia: 33 to 390. You know, the—the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.

He echoed the same idea in the Shelby County oral argument:

Justice Antonin Scalia: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that’s true?
Mr. Bert W Rein: No. I think the Court has to—
Justice Elena Kagan: Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.
Justice Antonin Scalia: Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no—none of their interests in voting against it.

Of course there are antidemocratic elements to judicial review. Of course the specific issues being discussed in the VRA cases and the DOMA case were different in important ways. And of course in different cases, justices and partisans alike will have different views of the proper degree of deference the Court should grant the political branches. But here we have the stark contrast in the rhetoric of Justice Scalia’s Windsor dissent with the holding of Shelby County, coupled with Justice Scalia’s apparent concern that overwhelming support for a law undermines its democratic legitimacy even in the face of express constitutional language granting Congress the power to act. This is, to put it mildly, strikingly inconsistent. At the very least, it demonstrates a remarkably arrogant belief in the justices’ ability to divine when overwhelming congressional action cannot be considered democratic. That is what Justice Ginsburg, in her Shelby County dissent, rightly called “hubris.”