Justice Elena Kagan - Shelby County v. Holder (Dissent) lyrics

In the Court's view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous rec­ord, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable, this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­ sliding. Those a**essments were well within Congress' province to make and should elicit this Court's unstinting approbation. “[V]oting discrimination still exists; no one doubts that.” Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to com­bat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA's requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights. A century after the Fourteenth and Fifteenth Amend­ments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon, 273 U. S. 536, 541; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright, 321 U. S. 649, 658; and in 1953, the Court once again confronted an attempt by Texas to “cir­cumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terry v. Adams, 345 U. S. 461, 469. Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.” Katzenbach, 383 U. S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts: Voting suits are unusually onerous to prepare, some­ times requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed­ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local of­ficials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted). Patently, a new approach was needed. After a century's failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, pa**age of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA's] pa**age, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in a**essing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, in­cluding increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120 Stat. 577. On that matter of cause and effects there can be no genuine doubt. In answering this question, the Court does not write on a clean slate. It is well established that Congress' judg­ment regarding exercise of its power to enforce the Four­teenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preserva­tive of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886). When confronting the most constitutionally invid­ious form of discrimination, and the most fundamental right in our democratic system, Congress' power to act is at its height. It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Consti­tution read in light of the Civil War Amendments. No­ where in today's opinion, or in Northwest Austin, is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders' first successful amendment told Congress that it could ‘make no law' over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized trans­formative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping en­forcement powers . . . to enact ‘appropriate' legislation targeting state abuses.” A. Amar, America's Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”). In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress' prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute's challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from con­temporary evidence, to be working to advance the legisla­ture's legitimate objective.