Document Type

Article

Publication Date

2011

Publication Citation

32 Cardozo Law Review 857 (2011)

Abstract

From the moment the U.S. Supreme Court first confronted the difficult constitutional questions at the heart of the Voting Rights Act, its posture has been one of deference. This posture has continued to this day. In contrast, the Court has interpreted the language of the Act dynamically, often in total disregard to the text of the law or the intent of Congress. But as this Article explains, the Roberts Court appears poised to unsettle this longstanding narrative. The Act is in serious constitutional danger. One way to explain this move on the part of the Court is by invoking the post-racial storyline that has surfaced since the election of President Obama and which informs this Symposium. This is the argument that we now live in a post-racial world, a society where race no longer matters. The argument is disarmingly simple: In a world where President Obama can become president, the Voting Rights Act is no longer needed to protect minority voters from racial discrimination. This argument can be similarly applied to the Civil Rights Act and most other statutes of that era. To be sure, that is a debatable proposition, and reasonable people can disagree. Whether one agrees or not with this argument, the real question is one of epistemic authority; that is, which institution should decide whether we now live in a world where the Voting Rights Act is no longer needed? Is this a question better left to our policy-making bodies, or is this a question that we should leave to five Justices on the U.S. Supreme Court? To ask this question is to answer it. If the Supreme Court can decide this question, there is essentially little it cannot do. If striking down the Voting Rights Act on constitutional grounds is not considered judicially activist, this Article concludes, the term has ceased to have any useful meaning.