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Is Section 5 in Trouble?

By Jack M. Balkin

Yesterday, every member of the Supreme Court told Congress that there were serious doubts about the constitutionality of Section 5 of the Voting Rights Act. Bruce Ackerman is confident that the Justices blinked and that they will affirm Section 5's constitutionality when the inevitable next case reaches the Court.

As I explain on Rick Hasen's blog, I have my doubts. The swing vote is Justice Kennedy, and I'm not sure yesterday's decision tells us anything except that he wasn't ready to invalidate Section 5 this Term. Maybe, as Bruce suggests, he will blink again when the case next comes around.

But if we are reading the tea leaves, then Section 5 supporters should be worried about the fact that the Court's four liberals joined Chief Justice Roberts' opinion casting doubts on every major justification for upholding Section 5. As I explain in my post, it is hard to figure out any reason for them to do so other than this: they thought that sending a crystal clear, united message to Congress was Section 5's best hope. That is, the four Justices on the Court may have been convinced that Section 5 will fall when the case returns, and they were hoping that members of Congress will take the hint.

If Congress decides to take the hint, it should take a look at a series of guest blogs that will appear on the American Prospect during the next day as well as several white papers on the Tobin Project's website, which I link here. All of them offer strategies for Congress to fix the problem before the Court fixes it for them.

Full post as published by Balkinization on June 23, 2009 (boomark / email).