WASHINGTON — The Roberts court chose a most cynical way to celebrate this summer’s 50th anniversary of Martin Luther King Jr.’s March on Washington.
On Tuesday, the Supreme Court’s penultimate day in session before the Aug. 28 semi-centenary of King’s “I Have a Dream” speech, the court’s conservative majority announced a 5-to-4 ruling that guts one of King’s greatest triumphs, the Voting Rights Act of 1965. (The Roberts court weakened another of King’s triumphs, the Civil Rights Act of 1964, in a pair of 5-to-4 rulings on Monday.)
Chief Justice John Roberts, who wrote Tuesday’s opinion in Shelby County v. Holder, was 10 years old in 1965, when police officers beat and gassed citizens in Selma, Ala., who were demonstrating for the right to vote; that assault, and King’s subsequent march from Selma to Montgomery, spurred passage of the very law Roberts and his colleagues undid on Tuesday by declaring a key provision outdated.
But if Roberts was ready to move on from that bit of civil rights history, 80-year-old Justice Ruth Bader Ginsburg, who was a young law professor during the civil rights era, was not going to let Roberts and his colleagues in the majority ignore that they were invalidating years of bipartisan efforts in Congress toward “achieving what was once the subject of a dream: the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race.”
In her quietly spoken but powerfully worded dissent read from the bench, Ginsburg invoked “the great man who led the march from Selma to Montgomery, and there called for the passage of the Voting Rights Act … ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion. That commitment has been disserved by today’s decision.”
It was difficult to hear the tiny and frail Ginsburg in the chamber. But her dissent, joined by the other three liberal justices, was a sharp rebuke of the conservatives for the yawning gap between their frequent vows of judicial modesty and the “hubris” apparent in their “demolition” of the Voting Rights Act. “What has become of the court’s usual restraint?” she asked the judicial activists of the right.
The 15th Amendment, which guarantees the right to vote, expressly gives Congress the “power to enforce this article by appropriate legislation.” Congress used that power as recently as 2006, renewing the Voting Rights Act by a vote of 390 to 33 in the House and 98 to 0 in the Senate; then-President George W. Bush signed the legislation.
That renewal continued what had been the law’s most important provision: subjecting states with histories of discrimination to extra scrutiny before they can change voting laws. Lawmakers concluded that “serious and widespread intentional discrimination persists” in the mostly Southern states covered by these “preclearance” requirements.
But Roberts said he had “no choice” but to invalidate that provision, because he disagreed with the lawmakers’ policy conclusions. “Today’s statistics tell a decidedly different story,” the legislator-jurist said from the bench.
The case had been brought by an Alabama county, and Roberts, in his oral summary, referenced Bloody Sunday. The chief justice justified his intervention by citing improved voter-registration percentages and by pointing out that Selma and Montgomery now “are governed by African-American mayors.”
That was little comfort to the civil rights activists on the sidewalk in front of the court, who were stung not just by the ruling but also by its timing.
“This is the 50th anniversary of the March on Washington,” protested Wade Henderson of the The Leadership Conference on Civil and Human Rights.
Civil rights lawyer Gerald Hebert quoted King before tossing in a bit of “we shall overcome.”
Inside the chamber, the justices had a late-session listlessness that seemed at odds with the significance of the moment. Stephen Breyer yawned. Anthony Kennedy stared at the ceiling. Sonia Sotomayor sipped a drink and Antonin Scalia rocked in his chair.
Ginsburg, though, was steely as she scolded the majority for their conservative activism. “It was the judgment of Congress (in 2006) that ‘40 years has 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,’” she said from the bench. In Alabama, she said, Congress found that “there were many” barriers to minority voting rights. “They were shocking and they were recent.”
History may not be as ancient as Roberts supposes.
Dana Milbank is a Washington Post columnist.
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