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Abstract of the Week
Posted at 5 p.m. on July 12, 2013
Richard Hasen has a forthcoming paper explaining how neither the Supreme Court’s majority opinion nor the dissent adhered to the doctrine of “judicial minimalism” in the recent decision to strike the preclearance provision of the Voting Rights Act.
“Despite the projected judicial modesty, the Shelby County Court was doing much more than calling balls and strikes and applying settled precedent to uncontested facts. Shelby County is an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion disregards the pervasive polarization in the current Congress which dooms agreement on a new coverage formula and it seems to reject any replacement coverage formula.”
“Yet the dissenters offer their own incomplete history of the VRA’s renewal, failing to grapple with the more complex record of the congressional reenactment. To hear the dissenters’ story, Congress in 2006 was nearly universally behind the 25-year renewal of section 5 using the old coverage formula, and Congress would have had no idea that the continuing use of the same coverage formula could have doomed its constitutionality. In fact, it was a less happy story. Congress willfully ignored the problems with the coverage formula which legal scholars brought to Congress’s attention… While the Shelby County majority minimized the audaciousness of its own holding, the dissenters minimized the difficult constitutional questions before Congress and before the Court.”