The Supreme Court’s latest decisions on the landmark cases of affirmative action and the Voting Rights Act show a remarkable lack of, well, decision. In the past two days, the Roberts Court has demonstrated what one might call "judicial passivism."
It started on Monday with affirmative action. The Supreme Court voted decisively on an indecisive ruling. In other words, they decided nearly unanimously (7-1) to let someone else decide by kicking the case down to the lower district courts. The Supreme Court officially ruled that the lower district court did not carefully scrutinize whether race conscious admissions programs were proven necessary for the educational benefits of diversity.
However the question of whether race conscious admissions are “necessary” is precisely what the court was expected to rule on. Moreover, nowhere in the opinion does Roberts define “educational benefits of diversity.”
Ten years ago, Justice Sandra Day O’Conner said affirmative action would not be needed in 25 years. It is uncommon for a judge to stamp her opinion with an expiration date. However, at least she answers the question whether affirmative action is still necessary. The debate has been ongoing since the 1960s and now it looks like it will continue for years to come.
Earlier today, the Supreme Court dodged another decision. They ruled that Section 5 of the Voting Rights Act is temporarily unconstitutional until a better formula is used for determining what states are discriminatory. Instead of kicking the can to a lower district court, they kicked it over to Congress.
But this decision — like its decision on affirmative action — left more questions than it answered. Namely, if the nine states specified are no longer targeted, which will be targeted next? How exactly will they be targeted? What new standards of voting equality must be met for a state to pass electoral laws without federal oversight? Must new states be targeted?
The federal government might pass regulatory laws that target specific states with apparent racial discrimination. However, the federal government might not pass bills of attainder — laws that single out specific groups for punishment. What is the difference between regulation and punishment? Regulatory laws are to correct current violations of law in certain districts. Punitive laws punish past violations of law even when the district has since reformed.
There is little doubt that given the persistent and prevalent racial discrimination in certain districts during the 1960s there must be some recourse for minorities. But that was 50 years ago when computers occupied floors rather than phones.
The South, despite it history of repression and blatant racism, has clearly reformed its electoral protections. Mississippi, once the worst offender of racial discrimination, had the highest turnout percentage among black voters in the country last election. Their rate flew from 7 percent registration in 1960 to 90 percent in 2012 where 80 percent of whites were registered. Five out of the nine Southern states targeted for their history of discrimination have higher rates of black voter registration than white. This immense progress brings up the doubt that federal laws are not so much regulatory as they are punitive.
No one is claiming that discrimination does not exist today. But it is clear the South has made tremendous and unrecognized progress. The court did not even consider nationalizing Section 5, like the law’s remaining sections, so that all states will be held to the same standards and must receive federal pre-clearance.
The court only put the provision on hold and is pending updates from Congress. Northern states, even with lower rates of black voter registration, are not in danger of requiring federal oversight further implicating the provision of being punitive rather than regulatory. Only Southern states, despite all the progress they have made, are left wondering how much longer they will be penalized for the faults of their grandparents.