Juridical context of the Shelby decision
One can better appreciate the interpretive possibilities that Shelby's rhetoric provides by understanding the decision’s context. Shelby can be contextualized from two main sources: statutory' law—here, the Voting Rights Act—and case law. In this instance, the 1966 decision South Carolina v. Katzenbach serves as the Court’s foundational interpretation of the purpose and reach of the Voting Rights Act. Additionally, the Roberts Court’s 2009 decision in Northwest
Austin Municipal Utility Dist., No. 1 v. Holder10 provides the initial interpretive turn from Katzenbach that foreshadows the eventual interpretive departure the Court makes in Shelby.
The Fifteenth Amendment to the United States Constitution prohibits the federal and state governments from denying a citizen the right to vote based on that citizen’s “race, color, or previous condition of servitude.”21 The impetus for enacting this post-Civil War Reconstruction Amendment was to prohibit the practice of states, especially Southern states, from enacting laws that had the intent and effect of restricting the freedom of and discriminating against African Americans. One of the crowning achievements of the Civil Rights movement was the Voting Rights Act of 1965, which prohibits racial discrimination in voting.22 Its purpose was “to foster our transformation to a society that is no longer fixated on race.”23 In 1965 that meant that the VRA needed to employ extraordinary measures to address the extraordinary problem of entrenched racial discrimination in voting in the Jim Crow South. One of the most controversial provisions of the VRA, Section 5, required certain states and local governments to obtain federal permission (called preclearance) before enacting any law related to election standards or voting requirements. The purpose of Section 5’s preclearance requirements was to “freeze” election practices and procedures in covered jurisdictions until new procedures, compliant with the VRA, could be established—either after the Attorney General’s administrative review or litigation in the federal court. Section 4(b) of the Act contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting. The coverage formula targeted those jurisdictions with a history of Jim Crow racism and discrimination in voting. Since its enactment, Congress has amended the VRA five times to expand its protections.
South Carolina was the first to challenge the constitutionality of the VRA,24 arguing that the VRA unconstitutionally encroached on states’ rights and violated the doctrine of equality among the states.25
Chief Justice Warren’s majority opinion recounted the deplorable history of disenfranchisement and minority voter intimidation in the South. “The VRA was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country' for nearly a century’.”26 Because of that century-long record, he continued, “The constitutional propriety of the VRA must be judged with reference to the historical experience which it reflects.”27 The opinion cited the failed congressional attempts at remedying racial discrimination in voting on a case-by-case basis, and noted, “the damage to our national conscience is too great not to adopt more effective measures than exist.”28
These passages frame the Court’s narrative of the VRA. The first frame is the metaphor of disease (“the blight of racial discrimination in voting, which has infected the electoral process”). The second is the VRA’s narrative on the historical experience of racial discrimination and our national conscience. The opinion’s relation of racial discrimination in voting to the threat and destruction of disease supports the Court’s decision to uphold the VRA as constitutional. However, as Ricoeur notes in The Rule of Metaphor, use of metaphor can extend language beyond its very limits by establishing a form of meaning making that can “forever discover new resonances within itself.”29 Thus, while the Court’s use of the metaphor of disease successfully conveys the experience of the severity of racial discrimination in voting, it also opens up two distinct ways of interpreting disease: as chronic or curable. Understood as chronic, congressional attempts to eradicate the disease of racial discrimination in voting are presumed to be perpetual and thus perpetually justified; understood as curable frames congressional attempts within the problem-solution modality, which imagines a determinate endpoint to congressional remedial efforts. The majority opinion recognized that the VRA upset basic federalism principles, but acknowledged that, based on this history of abuse, “exceptional conditions can justify legislative means not otherwise appropriate.”30 The Katzenbach opinion privileges the narrative of race-memory31 over a narrative of robust federalism to support its decision that not only had Congress exercised its power under the Fifteenth Amendment in an appropriate manner, but that in all likelihood this memory of racial subjugation was so strong as to leave Congress with no other choice but to invent this particular regulatory scheme. The opinion concludes:
Whatever legislation is appropriate, that is, adapted to carry out the objects the Civil War Amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.32
Katzenbach illustrates the Court’s implicit acknowledgment that it has an institutional duty to use the Constitution to protect race-memory. What then does it mean to judicially protect race-memory? It may simply mean that the Court must remedy past abuses.33 More radically, it might also mean that the Court must normatively consider slavery and racism on a conceptual level. Under this second interpretation, the motivation to protect is not limited to a focus on correcting specific instances of past abuse. Rather, protecting race-memory includes protection methods geared toward apologizing for the existence of slavery and racism in the first place. Katzenbach showed a Court willing to deploy the Constitution to protect the memory’ of slavery’ and racism as a hedge against their repetition.
Northwest Austin involved a small municipal utility district with an elected board in Texas, a covered jurisdiction under the VRA. Thus, the utility district had to seek federal preclearance before it could change any' of its election standards. The Roberts Court applied the principle of constitutional avoidance and decided the case on statutory' interpretation grounds.34 Notwithstanding its statutory grounding, the unanimous opinion written by Chief Justice Roberts signaled a shift from Katzcnbach in how the Court framed the memory and history' of race and in the Court’s response as to whether the time had come to impose institutional forgetting.
Northwest acknowledges the atrocities of the past described in Katzcnbach and thus elides criticism that Northwest is a blatant disregard of stare decisis?* His homage continues and captures the Warren Court’s Katzcnbach opinion:
We upheld the temporary' [VRA] as an appropriate exercise of congressional power in Katzcnbach, explaining that “[t]he constitutional propriety' of the VRA [had] to be judged with reference to the historical experience it reflects.”
We concluded [in Katzcnbach] that the problems Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify legislative measures not otherwise appropriate.”36
By' historicizing the conceptions of race-memory in the Katzcnbach precedent, Roberts lays the foundation for a construction of race-memory' and the history' of racial discrimination in voting that will ultimately' support the judicial forgetting in the Court’s majority' opinion in Shelby. He acknowledges that “the historic accomplishments of the VRA are undeniable,” pointing to the fact that the registration gap between white and black voters in the covered jurisdictions shrunk from “roughly 50 percentage points to single digits,” but then Roberts shifts the Court’s focus from the object of the VRA’s protection (minority' voters) to the object of its regulation (the covered jurisdictions): “the federalism intrusion into sensitive areas of state and local policymaking, impose substantial ‘federalism costs.’”37 The narrative thread is seamless: Once Upon a Time the South had a problem of racial discrimination in voting, which led Congress to enact a law with some constitutionally dubious but at the time necessary' requirements. We all went along with it because things were so bad ... back then. In a line that will embed itself in Roberts’s legacy on the Court, he writes: “Things have changed in the South.”38 He continues, “Blatantly' discriminatory evasions of federal decrees are rare.”39 And as a result, he concludes that “the current burdens [of the preclearance requirement of the VRA] must be justified by' current needs.”40 By rhetorically relegating the story' of the South’s racial discrimination in voting to the past, the Chief Justice can place the history' of racial abuse and the Warren Court’s interpretation of the purposes of the VRA in that defined historical moment in time. This clear break from the protection of race-memory' by' constructing a history of Southern transcendence of racial discrimination creates the space for the narrative of a redeemed South. This narrative operates a juridical forgetting by replacing judicial discourse about the protection of race-memory' with judicial discourse about the protection of the equality' and dignity of the states.
