THE BLOG
06/04/2013 04:30 pm ET Updated Aug 04, 2013

Justice Anthony Kennedy and Shelby County

As someone who has devoted the vast majority of my professional career enforcing the Voting Rights Act, the imminent decision in the Shelby County, Alabama case will be of great interest to me. My perspective is a unique one: I spent over twenty years in the Department of Justice (most of that time enforcing the Voting Rights Act), and I have spent nearly twenty years in private solo practice representing state and local governments who have endeavored to comply with the Voting Rights Act. Moreover, of the approximately 209 state and political subdivisions that have bailed out since the 1982 amendments to the Voting Rights Act liberalized the bailout requirements, I have represented around 95 percent of those jurisdictions.

Of course, I have no idea how the case will come out, but the Campaign Legal Center's amicus brief in the Shelby County case on behalf of jurisdictions that have bailed out made clear that the Court should not strike down as unconstitutional any provisions of the Voting Rights Act. But ever since oral argument, I have been thinking about Justice Kennedy, who everyone seems to acknowledge will cast the deciding vote one way or the other.

I recently read Joan Biskupic's excellent biography of former Supreme Court Justice Sandra Day O'Connor. I was reminded that when Ronald Reagan nominated her as the first female Justice on the Supreme Court, he borrowed a phrase from the poet Longfellow and remarked: "Those who sit in the Supreme Court interpret the laws of our land and truly do leave their footprints in the sands of time. Long after the policies of presidents and senators and congressmen of any given era may have passed from public memory, they'll be remembered." I have no doubt that the gravity of the decision in Shelby County case weighs very heavily on Justice Kennedy, and surely he knows that history will judge him, wrongly or rightly, about how he votes in this case.

I am just as certain that Justice Kennedy does not want to strike down a law and see a whole generation of discriminatory voting laws spring up, in the wake of a decision striking down the preclearance provisions of the Voting Rights Act. He has, after all, been on the Court for a quarter of a century and surely disagrees with Justice Scalia that the right to be free of racially discriminatory voting practices is nothing close to being a racial entitlement. And Justice Kennedy is keenly aware that the right to vote is not just another civil right, any more than the Voting Rights Act is just another piece of civil rights legislation. The right to vote has been cited as fundamental because it is preservative of all our other rights. And the Voting Rights Act was hailed by President Reagan as the crown jewel of civil rights. Everyone acknowledges that the Voting Rights Act has been responsible for the dramatic change in bringing about equal opportunities in all aspects of the political process, and ending it now will have lasting and pervasive negative effects throughout our country. Surely, none of this has been lost on Justice Kennedy.

If a majority of the Court strikes down Section 5 of the Voting Rights Act or its coverage formula, they will have said that they believe it is their function and role (not Congress') to determine whether the conditions that existed when Congress extended the Act in 2006 justified its extension. Even more importantly, they will have said that the Justices and not elected representatives of the people should determine when racially discriminatory voting practices in our society have ended.

Justice Kennedy must also be fully aware that the vast majority of jurisdictions subject to the preclearance requirements actually like submitting their voting changes for approval. The jurisdictions I have represented feel the preclearance process gives them an approval of a voting change when there is someone in their community who later complains about the change. Even many of the nearly two hundred jurisdictions that I have represented in bailout proceedings have made clear that the main reason for seeking bailout is not to avoid the preclearance process, but rather to get a judicial declaration that their election and voting process is equally open to all of their citizens--something of which they are rightfully proud.

Each of us at one time or another will be faced with a momentous decision, or least one that will have lasting impact on our lives. When those situations arise, it gives us a chance to lead -- whether we do so is up to us. I think Justice Kennedy faces this situation in the Shelby County case. Does he have the courage to take a leadership role in considering the fate of the most successful civil rights law ever enacted? He could, for example, note that Congress has stated in 2006 that it would re-examine the preclearance provisions in 2021, just eight years from now. He could say that by that time, the coverage formula will need to be changed or better justified by Congress. He could forge a consensus to have re-argument in the Shelby County case, where the issues are so important and will have such dramatic effect that another oral argument may be warranted. The point is that Justice Kennedy is uniquely situated as the pivotal Justice to do a number of things that could mark his place in history as a Justice who had sufficient concern for the integrity of the Court and the sanctity of the law itself. In the words of the poet Longfellow that former President Reagan referenced:

Lives of great men all remind us

We can make our lives sublime,

And, departing, leave behind us

Footprints on the sands of time.

Justice Kennedy has the opportunity to lead the Court and to show he is attuned to the social issues in our country and the deep division on the Court when it comes to issues of race. Will he seize the moment and stand up to those who want to reverse the progress that the Voting Rights Act has produced, or will he let himself be dragged into a short-sighted decision that will damage the Court institutionally and have lasting negative impact on minority voters throughout the country? We will know soon enough.

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