In an interview with the AP, Justice Ginsburg showed regret for joining the majority opinion in NAMUDNO–especially in light of the fact that Roberts relied on that opinion to strike down Section 4 in Shelby County:
Roberts relied heavily on another decision from 2009 in which the justices essentially left the law alone while warning Congress about serious problems with the data and urging lawmakers to do something about it. They didn’t.
In that case, Ginsburg joined Roberts and every justice but Clarence Thomas to leave prior approval in place.
Ginsburg said she probably shouldn’t have done that. “I think in the first voting rights case, there was a strong impetus to come down with a unanimous decision with the thought that maybe Congress would do something about it before we had to deal with it again,” she said. “But I suppose with the benefit of hindsight, I might have taken a different view.”
This jives with Rick Hasen’s recent piece about whether the liberal justices are “savvy or suckers” for signing onto consensus opinions in Fisher and NAMUDNO, that are loaded with “time bombs with long fuses.” Justice Breyer said joining the Fisher opinion was the smart thing to do . Phew he said. RBG did not. Perhaps Justice Ginsburg, recognizing her error in NAMUDNO, wasn’t going to make the same mistake again.
Which brings us back to Justice Stevens. Unlike RBG, he didn’t have the stomach to note that he joined the Roberts opinion in NAMUDNO that helped support Shelby County.
This raises the question of why the liberal Justices may have missed these time bombs. The Justices, and their clerks are not dumb, and they probably see the dangerous dicta, but due to the consensus, they must ignore it. Then, when the timebomb goes off years later, they are stuck with it.
In NAMUDNO, it would seem that everyone recognized what was going on. The Court would punt on striking down the VRA, and give Congress the opportunity to fix it. But everyone know that would never happen (Ginsburg admitted she naively thought Congress would “do something about it”) and it was simply a precursor to striking down the VRA in a later case. This was the compromise. With that being said, wouldn’t the savvy liberal justices (Stevens in particular) have been on heightened alert about any potential time bombs (like “equal sovereignty of the states”)? Or, because the coalition wanted to have an opinion without any fractures, they simply signed on to anything? Perhaps hoping that in a few years the Court would do something different?
Maybe one day we can know about the internal dynamics.
H/T Rick Hasen
Update: Rick links to a 2009 American Prospect piece by Heather Gerken looking at what could come after NAMUDNO–and whether RBG’s hopefulness was well-founded.
Is there a chance Section 5 will survive when we tune in next?
Perhaps. Everyone knows the recipe for ending a B movie. Sometimes the guy holding the gun just blinks. It may be that when the lawyers re-enact this drama, Justice Anthony Kennedy — widely thought to be the swing vote in this case — will not provide the fifth vote to invalidate Section 5.
Or perhaps Section 5 has another escape route. The Court darkly hints in its opinion that Section 5 will likely fall under both the demanding “congruence and proportionality” test and the gentler “rational means” standard.
Finally, it’s possible that the cavalry might come to Section 5’s rescue, in the form of a congressional solution. …. Depending on Congress to save the day means betting on a long shot. Congress is powerful, but it’s a lumbering giant, one that often requires a fairly sizeable crisis to get it to budge. Whether the Supreme Court’s implicit threat is enough of a prod remains to be seen. But that, of course, is just what makes for a good cliffhanger.