Will It Be 1972 Forever?

The question to which the Supreme Court recently gave a mistaken answer was: Has the revolution in race relations since enactment of the 1965 Voting Rights Act rendered the act's Section 5 anachronistic and hence unconstitutional as a no-longer defensible encroachment on the rights of the affected jurisdictions? The court's 8–1 ruling to preserve Section 5 is a reminder how misguided are conservatives' indiscriminate denunciations of "judicial activism."

Clarence Thomas, the court's only black justice, and arguably its most conservative, cast the only vote to strike down Section 5. He did so because of social changes made vivid by the election of the first black president.

Because a number of states and some jurisdictions in others had been ingenious in devising tactics to suppress voting by blacks, the 1965 act required them to seek -permission—"preclearance"—from the Jus-tice Department for even minor changes in voting procedures, such as locating polling places. The act's "bailout" provision, which ostensibly provides a process by which jurisdictions can seek to end federal supervision, is extremely burdensome: Since 1982, only 17 of the more than 12,000 political subdivisions subject to the preclearance requirement have been allowed to bail out.

In 1965, the preclearance requirements were authorized for just five years. But they have been extended four times, most recently in 2006 for 25 years. By 2031, when Congress probably will extend it again, Barack Obama will be collecting Social Security.

The latest electoral data used to justify the 2006 extension was from 1972. Then gasoline cost 36 cents a gallon, the Dow's high was 1036, the most-watched television program was All in the Family, and the winner of the Academy Award for best picture was The Godfather.

In 2006, an Austin, Texas, utility district, which did not even exist until 1987, went to court seeking relief from preclearance. The court held that the bailout provision was unavailable to the district because it does not register its own voters. The district appealed, arguing that no such restriction on bailouts is in the Voting Rights Act, and that if it is, the preclearance requirement is unconstitutional.

The district's lawyer acknowledged that if the court supported the district's right to seek a bailout, then the court "need not" settle the constitutional point. So John Roberts and seven colleagues said there was no point "rushing" to decide whether events have rendered Section 5 unconstitutional. Doing so would have infuriated persons attached to that provision not as a still-needed protection but as a symbol of heroic days long gone.

Roberts acknowledged that in some states covered by the preclearance requirements, "blacks now register and vote at higher rates than whites." He noted that Section 5, which "imposes current burdens and must be justified by current needs," entails substantial "federalism costs." And he quoted Alexander Hamilton on the court's duty to resist "legislative encroachments."

But because declaring an act of Congress unconstitutional is the court's "gravest and most delicate duty" (Oliver Wendell Holmes), and because the court has hitherto noted that Congress, too, takes an oath to uphold the Constitution, Roberts held that the court normally should (in words from a 1984 ruling) "not decide a constitutional question if there is some other ground upon which to dispose of the case." So, said Roberts, it was sufficient to hold that the Texas district could have recourse to Section 5's bailout provision.

Thomas, however, believes that the "doctrine of constitutional avoidance" was inappropriate in this case. The fact that the court has declared the Texas district eligible to seek a bailout neither guarantees relief from a burden that has lost its rationale nor addresses Section 5's now patent unconstitutionality. Allowing its continuance in the absence of the emergency that long ago justified it seriously damages the nation's constitutional structure: "State autonomy with respect to the machinery of self-government defines the states as sovereign entities rather than mere provincial outposts subject to every dictate of a central governing authority."

The 15th Amendment guarantees the right to vote and grants Congress the power to enforce the right with "appropriate" legislation. Thomas argued that Section 5 is now inappropriate: "Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative meas-ure that has already served its purpose."

Thomas, refusing deference to a branch of government that has not done its duty, said: "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today." His position constitutes the sort of judicial activism on which constitutional government depends—a determination to enforce institutional boundaries on the political branches that have a perennial itch to overstep them.