Justice Ginsburg’s dissent
Justice Ginsburg’s dissent attempts to construct a “remember Jim Crow” story' as a counterpoint to Roberts’s “slavery-to-freedom” narrative. Ginsburg’s narrative considers slavery', the Black Codes, Jim Crow, and the Civil Rights Movement not simply in terms of their occurrence or their vestiges, but as objects that create a modern-day affect. In her construction of this history of slavery' and racism, she insists on acknowledging slavery' and racism’s continuing influence on racial justice issues.
In her dissent, Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, begins by articulating the twofold congressional purpose behind the legislative body’s most recent reauthorization of the controversial measures of the VRA: “First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.”56 In contrast to Roberts’s conception of the VRA as a backward-looking, compensatory', remedial statute geared toward specific and particularized past abuses, Ginsburg frames the VRA as a backward- and forward-looking statute. It is remedial and preventative in its ability' to enforce the substantive protection of the voting rights granted in the Fifteenth Amendment. Understood in this light, the purpose of the VRA becomes (1) to stamp out the vestiges of slavery' and Jim Crow racism, and (2) to address racism as a present problem in American politics.
Like Roberts’s majority' opinion, Ginsburg also draws lessons from the history' of the Civil Rights Movement for support, calling on the legacy of Martin Luther King, Jr., the need for a longstanding commitment to civil rights progress:
Alabama is home to Selma, site of “Bloody Sunday” beatings of civil rights demonstrators that served as the catalyst for the VRA’s enactment.
Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion.’’7
However, Ginsburg’s use of the Civil Rights Movement is markedly different from the majority’s use of similar incidents. Whereas the majority imports the Civil Rights Movement to showcase a problem-solution model, the dissent’s use of it emphasizes that the individual, isolated instances of the movement created an enduring commitment—a struggle. Ginsburg uses the Civil Rights Movement to argue that these instances of resistance should be understood not as discrete moments of reaction to specific occasions of oppression, but as indicators of a culture collectively committing to racial justice and equality.
Next, unlike the majority', Ginsburg’s dissent tackles head-on what Ricoeur calls the first phase of active engagement with history, the documentary' phase:
Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.58
Her dissent recounts the “21 hearings” Congress held, in which it heard testimony' from “scores of witnesses, received a number of investigative reports, and other written documentation of continuing discrimination in covered jurisdictions,” culminating in a legislative record of “more than 15,000 pages.”59 Using details from this documentary evidence, Ginsburg constructs a historical narrative that, while acknowledging the impressive strides and improvements made in the South, including in Alabama specifically, denotes the still deeply' entrenched problem of voter discrimination in the covered jurisdictions.
Part of her ability to weave a historical narrative about the South’s history' of voter discrimination is that unlike the majority', which looks at whether current conditions resolved past problems, such as voter registration and turnout, Ginsburg evolves the definition of voter discrimination to include first-generation barriers and second-generation barriers. The former include the kind of blatant voter discrimination laws that the majority' opinion uses as its metric. The latter include more subtle attempts to block minority' access to the ballot, such as racial gerrymandering or the “adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority'.”60 This substantive understanding of voter discrimination allows Ginsburg to construct a narrative that is open-ended in the sense that it avoids the teleology accomplished by Roberts’s redemption narrative.
When Ricoeur discusses forgetting and manipulated memory, he acknowledges the inherent weakness in the work of narrative configuration. He writes, “[Because] the narrative necessarily contains a selective dimension ... one can always recount differently, by eliminating, by shifting the emphasis, by recasting the protagonists of the action in a different light along with the outlines of the action.”61 Ginsburg admonishes the majority for just such a narrative reconfiguration, noting:
The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. ... With that belief, and the argument derived from it, history' repeats itself.62
While Ricoeur notes that there is a positive aspect of forgetting that can lead to forgiveness and transcendence, compelled or manipulated forgetting may not afford the same transcendent benefit. The treatments of memory, history', and forgetting expose the core disagreements between Roberts’s and Ginsburg’s opinions: whether the fight for racial justice is limited to alleviating the vestiges of slavery and Jim Crow or includes investigations into present structures and systems, as well as the role that the federal government should play in supporting or administering that fight.
The awareness of memory' as malleable and as a source of political contestation has serious implications for the practice of constructing memory and historical narrative in judicial discourse. A Ricoeurian reading of Shelby demonstrates the narrative power of language to affect patterns of judicial discourse and precedent that shape the production of memory and forgetting on an institutional level.
