Understanding the Paradoxical Case of the Voting Rights Act

Abstract

This is an article about the Voting Rights Act of 1965 and its curious handling by the U.S. Supreme Court. When the Court examines the constitutionality of the Act, for example, it blindly defers to the work of Congress, unwilling to subject the statute to any meaningful scrutiny. In contrast, this posture of deference for questions of constitutional law differs greatly from the Court’s posture when interpreting the language of the statute. This is an area where the Court defers to no one, even when the text of the statute or the clear intent of Congress demands a different outcome. The recent case of Namudno v. Holder, decided this past term, follows this established script; in dodging the constitutional question and deciding the case on technical statutory grounds, the Justices placed themselves squarely within the history and tradition of the Act. This Article concludes that the Court’s handling of the Act is best explained as an exercise in “living constitutionalism,” with the justices acting strategically in pursuit of their policy goals.