Bench Memos

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Senator Leahy and ‘Conservative Activism Pure and Simple’


CQ Politics “Legal Beat” reports on a speech that Senator Leahy gave today, in which he warns that, if the Supreme Court strikes down Section 5 of the Voting Rights Act this month, it will be “conservative activism pure and simple.” He said that the Court “should not substitute its own judgment for that of Congress.”

So I guess “conservative activism” means judicial activism that reaches a conservative result. But striking down Section 5 would not be judicial activism.

Judicial activism is a court’s substitution of its own policy preferences for what the text of the Constitution (or other law) actually says. The classic instance involves making up a limitation on a legislature that does not actually exist in the Constitution, but it also includes ignoring a limitation that actually does exist in the Constitution.

The problem with Section 5 is that it prohibits many state actions that are not unconstitutional (since it employs an effects test, and the Fifteenth and Fourteenth Amendment prohibit only disparate treatment). Indeed, its principal use these days is to require states to engage in disparate treatment, namely the racial segregation of voting districts by racial gerrymandering. In addition, Section 5 supplants state authority in matters committed by the Constitution to them and substitutes federal judicial and bureaucratic supervision instead (this could be justified if necessary to stop states from violating the Constitution, but as just noted Section 5 goes way beyond that). Finally, Section 5 applies to some states and not others, without any existing factual basis for doing so, which is likewise inconsistent with the Constitution’s federalist structure.

So, in reauthorizing Section 5 in 2006, Congress exceeded its constitutional authority. Striking it down would honor the Constitution’s text, and would not be judicial activism; upholding it would mean ignoring constitutional text, and would be judicial activism.

Footnote: I’ve heard it argued that the Court cannot legitimately conclude that Section 5 might once have been constitutional but, because of changes in the facts, isn’t any longer, because such fact-finding is up to Congress. But courts determine facts all the time, and changes in factual circumstances may mean that what once met an — unchanging — constitutional standard no longer does.


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