Justice Ruth Ginsburg reached far beyond traditional legal arguments in her dissent to her Supreme Court peers’ ruling gutting the Voting Rights Act — a rhetorical style at which Justice Samuel Alito reportedly rolled his eyes. Ginsburg’s rebuttal is a comprehensive and categorical takedown of Chief Justice John Roberts opinion, which was joined by Justices Thomas, Scalia, Kennedy and Alito. In summary, it says that the majority’s opinion, which declared the Section Four coverage formula unconstitutional, completely dodged the actual question before the Court, which was whether Congress had the power to reauthorize the Voting Rights Act in 2006, and if Congress acted “rationally” when doing so. Ginsburg argued that Congress most certainly did on both questions, and that more importantly, VRA has worked where it’s supposed to work.
“Congress approached the 2006 reauthorization of the VRA with great care and seriousness,” wrote Ginsburg. “The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.”
Driving her point further, Ginsburg wrote, “Hubris is a fit word for today’s demolition of the VRA” and “throwing out preclearance [the Section Four formula] when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Usually SCOTUS opinions draw heavily from past court decisions, and Ginsburg’s is no exception. But she also reminded the court of the “Bloody Sunday” campaign for voting rights in Selma, Ala., and quoted Martin Luther King’s hopeful determination when he said, “The arc of the moral universe is long, but it bends toward justice.”
Ginsburg also quoted Shakespeare, telling the Court that “what’s past is prologue,” and the Spanish-American poet and philosopher George Santayana who said ”[t]hose who cannot remember the past are condemned to repeat it.”
Finally, Ginsburg recognized that today’s ruling seems to negate a ruling the Supreme Court made just a week ago, in the Arizona v. Inter Tribal Council of Arizona case, where they struck Arizona’s proof-of-citizenship law as unconstitutional. As we explored in Colorlines last week (“Does the SCOTUS Arizona Ruling Impact the Voting Rights Act Case?”) Ginsburg stated that Congress has broad powers to address voting rights issues and said, “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.”
In her footnotes, Ginsburg cited the Arizona case and said at least five constitutional amendments “are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections.”
For more on today’s ruling read: ”Supreme Court Guts Voting Rights Act” and “OK, Congress, Time to Get Your (Voting Rights) Act Together”