an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the reasons that the Supreme Court will miss David Souter is that he possesses a gift that we seek but rarely find in a judge -- the ability to step outside the bounds of his experience. Nowhere is this more evident than in Justice Souter's astute take on the fraught relationship between race and politics, a topic that has dominated the Supreme Court's docket for much of his tenure.
Souter is perhaps the least politically connected person on the Court, and his home state of New Hampshire is a racially homogenous state that hasn't had much of a record either way with the Voting Rights Act. Despite his lack of experience, Souter has carved out a position on the Voting Rights Act that is both more nuanced and more pragmatic than his brethren's. If you want to know what makes Souter a great judge, take a look at his voting-rights opinions. Because Souter's voting-rights jurisprudence is tied up with his legacy on the bench, it is depressing that his last term on the Supreme Court may coincide with the last term of the Voting Rights Act as we know it. Based on Wednesday's oral argument, many now expect the Supreme Court to strike down one of the main provisions of the Voting Rights Act, over what seems likely to be a vigorous Souter dissent.
There is nothing simple about voting-rights litigation. Race gets even more complicated when poured into the crucible of partisan politics. On basic questions of race, such as affirmative action, the Court has long divided into two basic camps, with the conservatives flogging the ideal of colorblindness while liberals idealistically rely on rights and courts as the solution to inequality.
Neither position translates well to the context of voting. It is odd for the conservatives to demand that the state be colorblind when voters are decidedly not. In a world of racial bloc voting, race-blind districting is simply a recipe for disempowering racial minorities. But the dominant story of race told by the liberals on the Court -- one that treats racial minorities as "objects of judicial solicitude, rather than as efficacious political actors in their own right," in the words of Stanford law professor Pamela Karlan -- similarly misses something important. It misses the idea that putting representatives of the minority community into positions of power gives racial minorities the power to protect themselves, so that eventually they no longer need be wards of the Court.
Souter understood both of these things. Consider his take on majority-minority districting, a practice about which the Court has been fighting since before Souter joined the Court. The Court's conservatives generally see majority-minority districts as hand-outs, akin to affirmative action and business set-asides. The Court's liberals generally view majority-minority districts as unfortunate necessities, a race-conscious strategy for integrating legislatures when voters won't.
Souter saw majority-minority districts for what they are -- a necessary part of the dynamic by which outsiders find their way to poltical integration. Majority-minority districts are designed to reduce the salience of race in politics, contrary to the conservative view. But they do so not by producing legislatures that appeal to some aesthetic ideal of diversity, but by pulling racial minorities into the political system and giving them a stake in it. In a case on race and redistricting, Souter argued that majority-minority districts were no different from the Polish and Lithuanian wards that once dominated Chicago or the Irish and Italian wards of Boston. In his words, these districts "allowed ethnically identified voters and their preferred candidates to enter the mainstream of American politics," eventually reducing the salience of ethnic identity as these communities gained political muscle and began to think of themselves as part of the system, not outside of it.
Souter was not naïve. He was well aware that pork and patronage played a role here, that there was an ugly side to political integration of this sort. I think his references to cities dominated by machine politics were clear-eyed and deliberate. Even as a man who had quite self-consciously lived his life outside of politics, he understood its dynamism and had an astute sense of how to harness it. Even as a person whose views presumably lined up well with the moderate Republican politics of New Hampshire, he grasped the gravitational pull that political power can have on outsiders, the material and dignitary reasons why every group wants to elect a champion of its own, the ways in which being able to identify "my guy" in the legislature furthers rather than undermines the long-term project of integration. Consistent with this dynamic view, Souter never thought of majority-minority districts as a stop-gap measure, something that would guarantee racially integrated legislatures until voters became willing to create them on their own (conditions that election scholars call "normal politics"). Instead, he understood majority-minority districts as the means by which we get to normal politics. Souter always insisted that racial minorities were not immune from the obligation to "pull, haul, and trade" when conditions permitted. And he was an ardent supporter of efforts to foster coalitions between white voters and voters of color -- provided those strategies did not deprive racial minorities of the ability to do what white voters do routinely and unthinkingly: choose a champion. But while Souter recognized that times were changing and was more than happy to adapt to those changes, he was also plainly of the view that we haven't yet reached the other end of the Edmund Pettus Bridge.
If Souter's questions at last Wednesday's oral argument and prior opinions are any guide (and I have no inside knowledge), Souter does not think it is time to retire the Voting Rights Act. Were I not a loyal Souter clerk who thinks he's entitled to retire after devoting his life to public service, I'd be tempted to say the same of him.