Balkinization  

Monday, June 22, 2009

The Supreme Court Punts on Section 5

Heather K. Gerken

The sound you just heard emanating from the Supreme Court in issuing its decision on Section 5 of the Voting Rights Act was the sound of a punt, followed by sighs of relief from the civil-rights community. Many, including myself, thought that the Supreme Court was going to strike down Section 5 as exceeding Congress's powers to enforce the 14th and 15th Amendment. Instead, the Court decided the question on statutory grounds, a narrow justification that gets rid of this case while leaving the bigger constitutional questions for the future.

There are several signs that the Court intends this to be a punt. First, the statutory argument is one that that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because of prior Court opinions. Second, while the opinion contains some rather dark hints about Section 5's future, those statements are countered by observations that supporters of the Act will plainly cite during the next go-round. Still, it's hard to read this decision and think that Section 5 is going to have an easy time of it the next time it is challenged in this Court.

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