The Voting Rights Act decision as a clear example of judicial activism
Editor’s note: This commentary first appeared on The New Republic’s website.
... To understand the activism of the Court’s approach to Voting Rights, a brief history of Section 2 of the Act may be helpful. Section 2 says that “No voting qualification or prerequisite to voting, or … procedure shall be imposed … to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
In the 1973 White v. Regester case, the Supreme Court interpreted Section 2 to ban voting practices that had the effect of suppressing minority voting, even if they weren’t intended to do so. But in 1980, as the Court grew more conservative, it reversed itself and held that only intentional voting discrimination was illegal under Section 2. In 1982, by bipartisan majorities, Congress repudiated the Court’s narrow view of voting discrimination and amended Section 2 to make clear that voting practices that had discriminatory effects were illegal, even without clear evidence of discriminatory intent.
For nearly a decade, between 1992 and 2001, the Supreme Court came close to suggesting that Congress’s attempt to ban voting practices that had discriminatory effects was itself unconstitutional.
Four conservative justices – Chief Justice Rehnquist, and Justices Scalia, Thomas, and Kennedy– insisted that all racial classifications in voting were inherently suspicious, and that voting districts drawn for the benefit of minorities should be struck down whenever race was the “predominant factor” motivating their design ...
http://blog.constitutioncenter.org/2013/09/the-voting-rights-decision-as-a-clear-example-of-judicial-activism/
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