Why 5-4? [View all]

https://www.brennancenter.org/our-work/analysis-opinion/why-5-4

Today I’m going to talk about a potential Supreme Court reform that has not gotten as much attention as term limits, expansion, and ethics rules, but which may be as effective as any of them in putting the Court in its proper place in American democracy: a consensus requirement.

I have been thinking about this reform in the wake of last month’s gut-punch of a ruling in Louisiana v. Callais and its cavalier disembowelment of one of the most significant and consequential federal laws in American history. The aftershocks of the decision continue to reverberate, with Republican legislatures across the South racing to redraw their maps not only mid-decade but literally mid-election, all with the Court’s open encouragement. It’s so brazen that I’ve wondered, if the right-wing justices actually wanted Congress to assert its inherent constitutional powers and rein them in, would they be doing anything differently?

I wonder this because the Voting Rights Act is not your average piece of congressional legislation. The “crown jewel” of the civil rights movement, it was first passed in 1965, triggering immediate and dramatic improvement of Black voting rates throughout the South. Congress reauthorized it in 1970, then again in 1975, then again in 1982, then again in 2006 — during periods of both Republican and Democratic rule in Washington, and often with bipartisan supermajorities.

The last time, in 2006, the House Judiciary Committee itself “assembled over 12,000 pages of testimony, documentary evidence and appendices from over 60 groups and individuals.” In its report, the committee explained its support for another reauthorization, saying that “40 years have not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th Amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” The 2006 reauthorization vote passed the House by 390–33, and the Senate by 98–0. It was signed into law by President George W. Bush.

*snip*