Voting Rights Act

Today in an 8-1 opinion, the Court declined to rule on the constitutionality of the Voting Rights Act. The pertinent portion of that Act requires pre-clearance by the DOJ of all district lines in places that previously had discriminatory districting and voter registration practices, mostly but not exclusively in the South (Arizona is also included, for example). The 1964 act was intended to be temporary. However, it was renewed in 1982 for 25 years, and renewed in 2006 for a further 25 years. The question that the Court dodged (except for Justice Thomas) was whether the circumstances that supported the Act 40 years ago could justify its continuance in effect today. Justice Thomas would have said "no" to the act based on his assertion that the attempts to disenfranchise blacks are part of history now and would not return if the Act were voided.

This is a good example of what it means to be an "activist" judge and why Justice Thomas is no modest "umpire-like" judge. Although the Congress found that the act should be renewed, he would overrule the act based on his own ideological belief that we now live in a color-blind society. This is a pollyannish view of history also. The notion that we naturally progress somehow from racism to color-blindness is surprisingly teleological for a consetvative. Right now there is no public toleration for racial gerrymandering for the specific purpose of disenfranchising minority groups. But that can change. History shows that this current period of racial tolerance is the aberration in American history, something we must protect, not something we can just take for granted.