Former U.S. Supreme Court Justice John Paul Stevens publicly criticized the recent ruling by a slim majority of the court to tear the heart out of the Voting Rights Act. Justice Stevens’ critique was part of a book review he authored for The New York Review of Books of historian Gary May’s Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.
Stevens argued that Congress is better equipped than the Court to determine what remedy is needed to address voting discrimination. Justice Stevens writes:
The several congressional decisions to preserve the preclearance requirement—including its 2006 decision—were preceded by thorough evidentiary hearings that have consistently disclosed more voting violations in those states than in other parts of the country. Those decisions have had the support of strong majority votes by members of both major political parties. Not only is Congress better able to evaluate the issue than the Court, but it is also the branch of government designated by the Fifteenth Amendment to make decisions of this kind.
Stevens goes on to add:
Instead of holding that it was unconstitutional to apply the preclearance requirement to Shelby County, the Court merely held that it was unconstitutional to use the formula in the 1965 Act to identify those jurisdictions that must have their proposed voting changes precleared. Presumably that narrower holding was intended to avoid the rule of judicial restraint that normally, in a so-called facial challenge, required the plaintiffs challenging the constitutionality of a federal statute to convince the Court that the statute is invalid under all circumstances. Thus, the Court sidestepped the problem that Alabama’s past history would adequately support a continuing application of preclearance procedures to Shelby County by focusing only on the formula used to subject Shelby County to this requirement.
That unusual method of reaching the merits of a constitutional issue without first addressing the antecedent question of what kind of challenge was before the Court was questionable to me when I first read the Chief Justice’s opinion.