The Shelby County, Alabama v. Holder opinion
In Shelby County, Alabama v. Holder, the United States Supreme Court deelared Section 4(b) VRA, which effectively nullified Section 5. In noting that “things have changed in the South,” the decision reasoned that reliance on the memory and history' of Jim Crow racism in the South was no longer warranted for purposes of protecting the substantive right to vote guaranteed by the Fifteenth Amendment; it was time to forget the past.
Chief Justice Roberts’s majority opinion
Chief Justice Roberts’s majority opinion constructs a teleological slavery-to-freedom narrative that creates the conditions for the juridical forgetting of the history' of racial discrimination in voting.41 His narrative follows a progressive linear conception of history'. Roberts’s opinion focuses on what it perceives as the most important story: not slavery, but the end of slavery; not Jim Crow, but the end of Jim Crow. Ultimately, Roberts’s opinion relegates the memory' of slavery' and racism to the status of a historical artifact.
The opening sentence of Roberts’s majority opinion frames the memory of the VRA: “The Voting Rights Act of 1965 employ'ed extraordinary' measures to address an extraordinary' problem.”42 Although the word “extraordinary” can be understood as both special and strange, as his first paragraph develops, it becomes clear that the construction of the majority’s historical narrative will depict the VRA as strange and abnormal. Roberts calls the VRA “a drastic departure from basic principles of federalism,” a “dramatic departure from the principle that all States enjoy' equal sovereignty,” and “strong medicine [that] Congress determined [...] was needed to address entrenched racial discrimination in voting.”43 He constructs this framing of irregularity and variance to describe the VRA’s measures not as innovative but as “unprecedented”44 and, in so doing, transforms the memory of the VRA from a vital piece of civil rights legislation and bulwark of racial justice to a historical anomaly.
The majority next articulates the amendment history of the VRA. After briefly acknowledging the initial failures of Congress to adequately' enforce the voting rights protections of the Fifteenth Amendment, noting that the case-by-case litigation remedies “were slow and expensive” and states were creative in coming up “with new ways to discriminate as soon as existing ones were struck down,”45 Roberts describes the multiple subsequent extensions Congress passed to continue the VRA’s measures (1970, 1975, 1982, and 20 06).46 Each time, Roberts describes the actions of Congress without mention of context, congressional deliberation, or even what type of testamentary or statistical evidence was made available to Congress for review.47 He presents a narrative of the VRA’s amendment that depicts Congress as lazy' and willing to reauthorize the “extraordinary” measures of the VRA absent deliberation, resulting in federal overreaching into and encroachment of the sovereignty of the states.
The next move the majority makes is the crux of Roberts’s reconfigured narrative. Proceeding from the basic premise that the need to secure equality among voters necessitated the VRA’s measures, the opinion captures this essence of equality and repositions it to cover not minority voters but states. Invoking the memory' of his 2009 Northwest Austin opinion, Roberts writes:
[In Northwest] we explained that §5 “imposes substantial federalism costs” and “differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.”48 And we concluded that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. These basic principles guide our review of the question before us.49
Here, Roberts shifts the focus from minority voters to the states themselves while maintaining the narrative of equality. He recasts what was a civil rights violation issue into an issue about equal sovereignty among the states. Through this rhetorical shift, Roberts is able to hold out the VRA as unnecessary' under current conditions given that “[tjhings have changed in the South [because vjoter turnout and registration rates now approach parity. Blatantly discriminatory' evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”50 More importantly, he suggests that the VRA is anathema to the American principle of freedom and dignity: “Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority ... The Voting Rights Act sharply departs from these basic principles.’”51
Roberts writes that the conditions of racial discrimination in voting in the South have changed dramatically' since the VRA was enacted nearly 50 years ago.52 In 1966, Roberts notes:
[This Court] concluded that “[u]nder the compulsion of these unique circumstances, Congress responded in a permissibly' decisive manner.” ... At the time, the coverage formula—the means of linking the exercise of the unprecedented authority with the problem that warranted it—made sense.53
However, Roberts continues, the formula that Congress uses to determine which states are covered by the preclearance requirements is no longer applicable, and the law itself is not in keeping with the times. Here, the majority draws on distinct lessons from the history' of the Civil Rights Movement for support, such as Philadelphia, Mississippi, where three civil rights workers were murdered during the 1964 Freedom Summer and Selma, Alabama: “Today both of these towns are governed by' African-American may'ors. Problems remain in these States and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.”54 In stating that “[O]ur nation has made great strides,” the opinion implies we no longer need federal enforcement over voting procedure.'’'’
By attaching the VRA entirely to the memories of slavery' and Jim Crow, Roberts constructs a linear slavery-to-freedom narrative that he can then rhetorically transpose from minority' voters to Southern states. Under the frame of equal sovereignty' and dignity, the Southern states are “forgiven” for their sins of slavery' and Jim Crow, and the VRA becomes obsolete. Roberts’s opinion replaces minority voters with the Southern states as the subject of the equality narrative but maintains the narrative’s form, thereby' preserving the connection to equality’s virtue. Through this narrative reconfiguration Roberts capitalizes on the power of the equality trope and uses it to the states’ advantage.
Roberts’s narrative invokes two powerful generic norms that a majority' of the bench found more persuasive than the empirical evidence on which Justice Ginsburg’s dissent relies. First, as mentioned above, Roberts’s construction invokes the norm of equality, which has tremendous purchase on the American legal imagination. Second, his recitation of the myriad ways in which the Southern states have risen above their ignoble history' with respect to racial discrimination in voting speaks to the post-racial identity' that America wishes to claim.
