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Shelby County v. Holder: The Yale Law Journal Online Symposium
Joseph Fishkin
As we all wait to hear what the Supreme Court decides to do with Section 5 of the Voting Rights Act in Shelby County v. Holder, the Yale Law Journal Online has a symposium up with four short essays on the case and its implications:
— Ellen Katz starts things off with a question: will the Court conclude that Section 5 is “A Cure Worse Than the Disease?” She argues that that would be a mistake, and that reliance on this analogy is dangerous: it “threatens to leave the underlying condition unaddressed and Congress without the power to address it.” She argues that the aspects of Section 5 to which some Justices object are really a matter of statutory interpretation rather than the statute itself, and that the right solution here ought to be reinterpretation, not constitutional invalidation.
— Looking ahead, Guy-Uriel Charles and Luis Fuentes-Rohwer argue that it’s time to start “Mapping a Post-Shelby County Contingency Strategy.” The authors imagine a new regime in which what they call institutional intermediaries—public-interest groups, advocacy organizations, even political parties—could potentially take over some important roles that Section 5 plays today. They describe this “emerging ecosystem” and imagine changes that could make it more effective.
— Justin Levitt’s essay considers “Section 5 as Simulacrum”: the imaginary statute the Court appears poised to strike down—a sort of “editorial cartoon” of the statute—as distinct from the statute that actually exists. He maps out a number of important dimensions on which the two differ, from the machinery of the coverage rules to the role that “racial essentialism and racial entitlements” play in what Section 5 permits or requires.
— My own essay for the symposium focuses on “The Dignity of the South”: the striking claim by the Shelby County plaintiffs that singling out the covered (mostly Southern) states for special scrutiny is constitutionally suspect because it violates those states’ “equal dignity.” I argue that the best way to understand this claim—which the Civil War ought to have foreclosed—is in the context of the long and surprisingly robust tradition of Southern and ex-Confederate arguments that aim to restore the lost dignity of the South. Along the way the essay discusses Chief Justice Rehnquist the amateur historian, John C. Calhoun in a toga, and zombies. (Ok, not really, but sort of.)
I learned from all the other participants’ essays; I recommend them all.