Memory, history, and forgetting: Shelby County, Alabama v. Holder

Introducton

generation of Americans. The Court’s last few terms have turned out to be especially significant. The Court has weighed in on some of the most hotly contested cultural and legal issues of our time. Given this, it is easy to see the power that Supreme Court opinions have as an agent of one of the most important social institutions affecting our lives—the law. The Roberts Court is poised to reexamine the Warren Court’s landmark decisions from the 1950s and 1960s and, in its current composition, that re-examination will be performed by a majority block of justices who interpret the Court’s role to be less socially progressive and more oriented to state’s rights/small government than their predecessors. The narratives the Court adopts, rejects, and constructs in their opinions—which already affect how issues in subsequent cases can be framed and litigated in court —will take on a larger significance if they also fundamentally restructure the basis for or objects of constitutional protection.

In this chapter, I use Paul Ricoeur’s analysis in Memory, History, Forgetting and extend it to an examination of the majority and dissenting opinions in the Court’s 2013 Voting Rights Act decision: Shelby County, Alabama v. Holder.^[1] 1 chose to focus on the Shelby decision because its holding directly negates the Warren Court’s foundational Voting Rights Act decision, South Carolina v. Katzenbach? Analyzing the two Shelby opinions through a Ricoeurian lens provides a means for examining and critiquing the sacrifices and implied legal consequences that judicial opinions produce through their construction of narrative forgetting.

Part II of this chapter sets forth some of Ricoeur’s ideas on memory, history, and forgetting. Part III provides a few relevant aspects of the judicial context of the Shelby decision. Part IV examines the Shelby decision. After a brief summary of the case outcome, I analyze Chief Justice Roberts’s majority opinion and Justice Ginsburg’s dissenting opinion and demonstrate how they rhetorically grapple with the representation of equality and the meaning of the Voting Rights Act through the judicial production of memory and forgetting.

Ricoeurian concepts of memory, history, forgetting

intelligible to others.¹⁰ Once intelligible or recognizable, those constructed narratives can then be transformed into collective memories that function as history.

Ricoeur then explains how the construction of these narratives emerges from the historian’s assemblage and evaluation of evidence made available from competing sources. The historiographical operation proceeds from the documentary' phase (collecting evidence) to the explanatory phase (making sense and understanding of the evidence) to the representation phase (articulating that understanding into a representation of the past).¹² The explanatory phase also actively engages with history'. Here, the historian tests his/her collection of documentary proof against variously posited explanatory' modalities.¹³ This critical interrogation provides a means to verify the plausibility', probability, or likelihood of a particular historical account.

Accepting the view that human action proceeds through a series of repeatable events produced by singular, unrepeatable human action such that these events are not susceptible to generalization, Ricoeur maintains that the historian’s representation of the explanatory' phase requires a narrative form so that it can be made comprehensible.¹⁴ He submits that the literary’ narrative form is an effective means to rhetorically stage the events of history' into an intelligible narrative.¹⁵ Ricoeur cites Hayden White’s work on emplotment as “Jt]he major contribution to the exploring of the properly rhetorical resources of historical representation.”¹⁶ In Metahistory, White discusses emplotment and its contribution to the historiographical operation of moving from chronicle to story' to history.¹⁷ Ricoeur emphasizes that emplotment operates as a powerful rhetorical device. Through emplotment, the organization of the narrative controls the meanings of the individual events contained within it.¹⁸ Thus, the narrative form itself tends to legitimize the evidence selected for inclusion in the narrative.

Finally, Ricoeur suggests that this narrative process involves two types of “forgetting”—one positive, in that one needs to forget some things to create a path to forgive and transcend trauma, and one negative, in the sense that forgetting may create space for repeating past mistakes or silencing minority voices.¹⁹ A Ricoeurian reading of Shelby reveals how Chief Justice Roberts’s majority opinion works as a misappropriation of the positive aspect of forgetting, while the narrative of Justice Ginsburg’s dissent cautions against the negative aspect of forgetting.

• [1] 2 Ricoeurian concepts of memory, history, forgetting Ricoeur investigates why some historical events occupy the forefront of the collective consciousness, while other events, just as profound, recede into the background. He reveals how the reciprocal relationship between remembering and forgetting influences both the perception of historical experience and the production of historical narrative. Ricoeur’s description of the phenomenology of memory begins with a focus on the object of the memory (souvenir) that one has in mind, then proceeds to the search for that given object, a stage that Ricoeur calls recollection (anamnesis).3 This process of memory-capture through recollection and reflection requires an active remembering that creates the bridge to history making and, ironically, to active forgetting. He explains that individuals recall memories and construct narrative histories to make those individual memories 3