Saturday, June 08, 2013

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.

Now back to your regularly scheduled June vigil.

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