Judicial modesty in action, Part One

During his confirmation process, John Roberts spoke in favor of “judicial modesty,” the approach under which courts attempt to do their job with as little encroachment as reasonably possible on the work legitimately performed by the other branches of government. Roberts also made it clear that, if possible, he would like to see more agreement among the Justices and fewer highly fractured decisions.

Critics have accused Chief Justice Roberts of failing to deliver either modesty or consensus, and even of attempting to mislead Congress when he professed to be judicially modest. But this criticism, including that of Barack Obama, was lodged in ignorance and/or the spirit of partisanship.

Today, in one of the the most important cases of the Supreme Court term, the Chief Justice delivered both modesty and consensus (an 8-1 decision with no concurrences). The case — Northwest Austin Utility District Number One v. Holder — raised a constitutional challenge to the preclearance provision of the Voting Rights Act.

Under this provision, some political entities and jurisdictions, but not all, must obtain permission from the U.S. government before they can change their election procedures. The entities required to seek such “preclearance” are those in states that used a forbidden test or device to screen voters in the November 1964 election and had less than a 50 percent voter registration or turnout in the 1964 presidential election.

During the oral argument of this case, it seemed that at least five Justices were prepared to find the preclearance provision unconsititutional due to the seemingly arbitrary way in which it determines which states must have their voting procedures approved by the federal government. As Chief Justice Roberts explained in the majority opinion, the preclearance rules go beyond the prohibition of the Fourteenth Amendment by suspending all changes to state election law, however innocuous, until they have been precleared in Washington, D.C. And they differentiate among the states despite “our historic tradition that all States enjoy equal sovereignty.” (Justice Kennedy really stressed this point during oral argument). Finally, basis for so differentiating is based on a formula that is more than 35 years old, and one as to which “there is considerable evidence that it fails to account for current political conditions.”

Nonetheless, the Court, by a vote of 8-1, declined to declare the preclearance provision unconstitutional. Only Justice Thomas, in dissent, would have made that declaration.

To avoid striking down a provision that he almost certainly considers unconsititutional, Chief Justice Roberts, for the majority, invoked the doctrine of “constitutional avoidance,” i.e., the approach under which “normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” According to the majority, the resolution of another issue that plaintiff asked the Court to decide sufficiently disposed of the case.

The other issue was whether the plaintiff could “bail out” of the preclearance requirement. A governmental entity can obtain bailout if it persuades a three judge court in Washington, D.C. that, in effect, it has been “clean” for the past ten years when it comes to voter registration. “Cleanliness” is determined based on both objective and subjective considerations. But when this plaintiff attempted to make the showing needed for a bailout, the three judge court ruled that it was ineligible to bail out because it does not register its own voters. Plaintiff asked the Supreme Court to review both this ruling and the ruling that the preclearance provision is constitutional.

All nine Justices concluded that the court below got the bailout eligibility issue wrong. All but Justice Thomas concluded that this ruling, which required reversal of the lower court’s decision, made it unnecessary to decide the constitutional issue.

Justice Thomas disagreed with the majority on this point because, as he explained, “the ultimate relief sought in this case is not bailout eligibility — it is a bailout itself.” And “because the Court is not in a position to award [the] bailout, adjudication of the constitutionality of [the preclearance provision]. . .cannot be avoided.” In other words, the substantial difference between what happens if the constitutional issue is decided — plaintiff can go ahead and change its election procedures — and what happens when the constitutional issue is not decided — plaintiff must go back to court and try to prove it is entitled to a bailout based on both objective and subjective factors — renders the constitutional avoidance doctrine inapplicable.

The Chief Justice’s response for the majority is to note that (1) the plaintiff phrased its constitutional challenge as being “in the alternative” and (2) plaintiff’s counsel agreed at oral argument that if the Court finds in his client’s favor on the bailout point, the Court need not reach the constitutional point.

I’m no expert in the constitutional avoidance doctrine, but I suspect that it is malleable enough to support either the view of Roberts or the view of Thomas. That Roberts’ approach commanded eight votes is, perhaps, a tribute both to the modesty of most of the Court’s non-liberal Justices and the desire of its liberal Justices to keep the preclearance provision on life support until reinforcements can be mustered.


Books to read from Power Line