Several prominent newspapers have editorials today urging the Supreme Court to uphold the constitutionality of Section 5 of the Voting Rights Act in a case that is being argued before the Court this morning; the Washington Post, the Los Angeles Times, and USA Today among them.
A common theme is the suggestion that the justices need to defer to Congress, but as Joshua Thompson and I explained on Bench Memos earlier this week, Congress deserves only limited deference in this matter. In particular, its reauthorization of Section 5 in 2006 was all about craven politics, not careful analysis.
What’s more, the editorials don’t acknowledge the other point that Mr. Thompson and I made, namely that the principal use to which Section 5 is put these days is coercing jurisdictions into drawing racially gerrymandered and segregated voting districts — which is quite at odds with the original ideals of the Civil Rights Movement.
Striking down a statute that really is unconstitutional is not judicial activism — to the contrary, it’s what judges swear to do.