I have read with interest commentary on the Supreme Court’s recent decision to grant review in Shelby County v. Holder, a case challenging the continuing validity of section 5 of the Voting Rights Act (VRA) as a congruent and proportional enforcement measure. The common theme seems to be that the Supreme Court should reflexively defer to Congress on the scope of legislation designed to enforce the Civil War amendments. A major premise of this argument is that to do otherwise would be “disrespectful” of Congress and, accordingly, illegitimate. For a recent illustrative example of this argument, see Pamela S. Karlan, Contempt of Court, Boston Review (Nov./Dec. 2012), available at: http://www.bostonreview.net/BR37.6/pamela_s_karlan_supreme_court_contempt_congress.php; for a longer and more sustained iteration, see Ruth Colker & James J. Brudney, Dissing Congress, 100 Mich. L. Rev. 80 (2001).
Of course, the “return the Constitution to the political branches” meme has deep roots. Its modern incarnation can be traced to work such as Mark Tushnet’s Taking the Constitution Away from the Courts (Princeton 1999) and Larry Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review (OUP 2004). These contemporary scholarly works draw on an even older tradition in U.S. constitutionalism and constitutional theory generally associated with James B. Thayer.
Thayer advocated a doctrine of consistent restraint on the part of federal courts—judicial review should be used, if at all, quite sparingly and only in cases of glaringly unconstitutional government action. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitional Law, 7 Harv. L. Rev. 129 (1893). Justice Felix Frankfurter’s dissenting opinion in Barnette provides a great example of this approach in action. Justice Frankfurter famously argued that the Supreme Court should defer to the plausible legislative judgment of the West Virginia legislature that all school children within the state should be required to recite the Pledge of Allegiance (on pain of being declared truants and perhaps having their parents declared unfit). See West Virginia Board of Educ. v. Barnette, 319 U.S. 624, 647 (1943) (Frankfurter, J., dissenting) (“The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law. In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review.”).
At the end of the day, “disrespect” and “constitutional fealty” strike me as two sides of the same coin. Was it “disrespectful” for the Supreme Court to deny Congress the power to suspend the writ of habeas corpus in Boumediene? Or disallow unreliable show trials (or even no judicial process) for alleged enemy combatant detainees in Hamdi? To reject Congress’s effort to “enforce” the rights of holders of military decorations not to have such honors devalued through public misappropriation by people like Xavier Alvarez? Or to reject Congress’s effort to protect the sanctity of the U.S. flag as a “unique national symbol” in Eichman?
These should not be difficult questions to answer: The Supreme Court always has an obligation to read the Constitution independently of the Congress and the President. Moreover, when an interpretive discrepancy arises, the Supreme Court’s reading of the relevant constitutional text should be controlling. I take this view as the standard reading of Marbury; Federalist No. 78 expressly endorses it, as do the records of the debates at the Federal Convention of 1787. Accordingly, if it is responsibility of the federal courts to interpret and enforce the Constitution, then federal judges must shoulder this task regardless of whether it produces friction with the other branches of the federal government (or, for that matter, with state governments).
Of course, other models exist and judicial review could, in theory, follow them rather than the judicial supremacy model. For example, federal courts could take Thayer’s approach to heart and essentially rubber stamp any act of Congress that Congress claims to be constitutional. Under this view, section 5 of the VRA would be clearly constitutional, “where is” and “as is.” (This question in not merely hypothetical in light of the grant of review in Shelby County v. Holder.) Of course, this would also hold true of the Detainee Treatment Act of 2005, as well as the federal Flag Protection Act of 1989. I suspect that relatively few persons would seriously commit themselves to respecting Congress’s constitutional judgments in both fair and foul weather.
The clear alternative is for federal courts to embrace Marbury and decline to defer to Congress’s constitutional judgments, at least when such judgments conflict with those of the Supreme Court. See Cooper v. Aaron, 358 U.S. 1 (1958). But, a meaningful commitment to this approach means living with judicial supremacy in both fair and foul weather as well—it simply won’t do to be in favor of judicial interpretative supremacy, except when you’re against it.
A third approach would essentially adopt a nakedly results-oriented lens and call for deference when one likes Congress’s work product (and the constitutional interpretations that undergird it) but for the withholding of such deference when one dislikes what Congress has wrought. This position strikes me as intellectually indefensible, but perhaps if one has already adopted the behavioral/attitudinal model of the judicial process, simply calling judicial politics “politics” should not constitute a cause for profound shame or embarrassment. That said, for the Supreme Court to operationalize successfully such an approach strikes me as a very tall order (perhaps even surpassing in difficulty the Twelve Labors of Hercules).
Returning to the central issue in the Shelby County case, and at the risk of repetition, my view remains that Congress, if it wishes to see section 5 of the Voting Rights Act sustained as an appropriate use of its power to enforce the Fifteenth Amendment, should have taken the Supreme Court’s warning, issued in 2009, more seriously. Even now, were Congress so inclined, it could set hearings on the question of suppression of minority voting rights and go about establishing a contemporary factual predicate for the necessity of section 5’s preclearance procedure in covered jurisdictions. To persuade the potentially persuadable (i.e., Justice Anthony Kennedy), Congress must prove to the Supreme Court that a problem in need of a solution exists as much in 2012 as it did in 1965 (or even in 2006, when Congress last renewed the VRA).