Conservatives Right to Oppose Section 5 of Civil Rights Act

In a recent New York Times column, Ramesh Ponnuru criticized conservatives for “deep inconsistency” in their arguments on two race-related Supreme Court cases. Conservatives had urged the court to find Section 5 of the Voting Rights Act unconstitutional and to declare unlawful the New Haven city government’s racially discriminatory treatment of its firefighters. 

Ponnuru typically writes with great wisdom and insight. But in this instance, his view that conservatives abandoned “both originalism and judicial restraint” is mistaken.  

Passed as an emergency, five-year measure in 1965, Section 5 remains in force today. It requires all or part of 16 states to get Justice Department approval of any change in voting procedures. It’s an extraordinary trampling of state sovereignty (and the Tenth Amendment).

In Northwest Austin Municipal Utility District v. Holder, the Supreme Court sidestepped the questionable constitutionality of this law, deciding the case on narrower statutory grounds. It held that the small Texas utility district that brought the suit could try to bail out from coverage. 

Ponnuru criticizes a dissent by Justice Clarence Thomas which argues that Section 5 is outdated and “exceeds Congress’ power to enforce the 15th Amendment.” He questions whether Thomas should second-guess the judgment of Congress in renewing the law in 2006.  

In fact, Thomas is exactly right. The 15th Amendment guarantees that the right of citizens to vote “shall not be denied or abridged … on account of race, color, or previous condition of servitude.” Section 5 was passed pursuant to Congress’s authority under that amendment. Its plain language, as well as its legislative history, make it clear the 15th Amendment is meant to stop intentional discrimination that prevents black suffrage.  

Notwithstanding the 15th Amendment, Section 5 was constitutionally dubious at the time of its enactment. The Supreme Court recognized this in Katzenbach just a year after its passage. The Katzenbach Court, however, justified Section 5 based on “exceptional circumstances” even though it arguably does not fall within a reasonable originalist or plain text understanding of “appropriate” legislation to enforce 15th Amendment voting rights. Even if one accepts this argument — which is hardly originalist or textualist — these exceptional circumstances no longer exist.  

While Congress deliberated renewing Section 5, no evidence was produce to indicate that the widespread, systematic, and intentional discrimination present in 1965 exists today. There is, however, plenty of evidence to the contrary. Indeed, the only differences between states covered by this law and states not covered is that there are more elected black officials in the covered states and that minorities register and vote at higher rates in covered states.  

Given the court’s dubious rationale for upholding Section 5 in the first place, and the fact that those “exceptional conditions” which the court relied upon to infringe on other constitutional provisions simply no longer exist, Justice Thomas correctly observed that it can no longer be justified as an appropriate mechanism for enforcing the 15th Amendment. It cannot be judicial activism when a justice argues against perpetuating error — that is, when a justice reins in actions that are clearly beyond the constitutional authority of Congress. Indeed, it would be judicial activism to allow such unconstitutional behavior to continue.  

Ponnuru wrote his column before the Supreme Court ruled on the New Haven firefighters case. Here, the court overturned the city’s invidious racial discrimination in a decision based on its interpretation of Title VII of the Civil Rights Act, not on the Constitution. This was neither judicial activism nor a lack of “originalism.”  

Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual … because of such individual’s race.” The Supreme Court noted that New Haven failed to certify the civil service test and promote the candidates “solely because the higher scoring candidates were white.” The only question was whether an unsubstantiated fear of a disparate impact claim (i.e., a soft quota lawsuit) could justify the overt discrimination. Here, the court found there was solid evidence of actual discrimination and a lack of evidence to support a claim of disparate impact. It is clearly not activism to follow the text of a statute that prohibits overt discrimination.

In neither of these cases did conservative arguments stray from principle or succumb to empathy. Rather, conservatives simply urged the Supreme Court to enforce constitutional limitations on the power of Congress and statutory prohibitions on discrimination by employers. That is originalism and textualism in their true forms. That is judicial restraint as it should be practiced. Let us hope we will see more such behavior from the Supreme Court.