By now, you should all know that the Supreme Court handed down their long-awaited decision in Northwest Austin Municipal Utility District No. 1 v. Holder. In short, the Chief Justice Roberts wrote for a nearly unanimous court holding that Section 5 was bad and faced several constitutional problems, but the Court decided to give Congress one chance to fix it. What that means is that Congress has to take some action, likely within the next few years, to repair some fatal flaws in Section 5 and they will likely be able to salvage one of the most important parts of the act.

The structure of the opinion is fairly interesting. Section I A presents a fairly sympathetic timeline of events leading up to the reauthorization of the pre-clearance requirement in 2006. Section I B mentions a brief history of the MUD district and the decision below, which held that the district wasn’t a “political subdivision.”

Section II is devoted almost solely to discussing the flaws in Section 5 of the VRA. After starting with a brief ode to the “undeniable” “historical accomplishments” of the VRA, noting that the Act now requires a heightened level of justification in-part because of its widespread success over the last 40 years. Chief Justice Roberts then thrashed the act for a slew of problems before eventually avoiding the constitutional issue.

One of the biggest questions this case presents is about why the traditionally liberal Justices, presumably supporters of Section 5 at its core, issued no clarifying concurring opinion about Section 5. There is a chance, and I think a very good one, that those judges hoped to send a unified message to Congress by joining only the Chief Justice’s majority opinion. If they had penned a four-Justice opinion concurring in judgement, there would be an increased chance that Congress would not heed the warning of the Court. The liberal Justices may see this nearly unanimous opinion as their best way of ensuring that Congress takes the Court’s warning seriously enough to make changes that will withstand review several years from now.

The Chief Justice penned an opinion that will make Judicial minimalists swoon. On its face, the opinion reads like a textbook example of judicial restraint (excuse the imprecise term) and the Chief Justice claims to move only as far as necessary to dispose of the case at hand. 30-years from now, if the Chief Justice’s lasting legacy is one of minimalism and incrementalism, this opinion will likely be one of his most famous. On the other hand, this may prove to be the calm-before-the-storm if the Court revisits Section 5 in the next few years and fulfills its promise to evaluate the section on its core constitutional issue.

Analysts have frequently brought up comparisons to Palm County Board of Commissioners and Bush v. Gore. After the Florida election fiasco in 2000, the Supreme Court issued a per curiam opinion telling the Florida Supreme Court, in effect, that it needed to reconsider some of its procedural findings or the Court would be forced to step in and intervene. The Florida Supreme Court didn’t take the hint and the Supreme Court then issued what is now considered to be one of the most politically-charged opinions of all-time.

Regardless of the path the courts and Congress take as a result of this opinion, one thing is certain: the Court’s opinion in NWAMUDNO represents a very serious warning to Congress. The Roberts Court has not been unwilling to tackle very serious Constitutional questions such as the scope of the Second Amendment (Heller), privacy (Carhart), and the death penalty (Kennedy, Baze), and questions of race have been no exception (Parents Involved, Ricci). It will be interesting to see how seriously Congress deals with the issue and when, not if, the Court decides to revisit this issue at it’s core.


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