NR’s Ramesh Ponnuru devoted a recent Bloomberg column to arguing for judicial deference to more democratic institutions in the “big four” cases that had not then been decided by the Supreme Court: the two marriage cases (Hollingsworth and Windsor), the university affirmative action case (Fisher), and the Voting Rights Act case (Shelby County). Fisher has now been decided, but the other three remain to be announced later this week, perhaps one or more of them tomorrow.
This morning Hans von Spakovsky and Elizabeth Slattery posted a comment on Ramesh’s column on the Corner, specifically criticizing his view of the Shelby County case, in which they think he was wrong to call for judicial deference to Congress’s legislative power (under Section 2 of the Fifteenth Amendment) to enact and re-enact the pre-clearance provision (Section 5) of the Voting Rights Act of 1965. Ramesh has responded to von Spakovsky and Slattery, I think with telling effect, but I’ll add something more myself, since they make a rather curious argument that Ramesh’s argument contravenes a core principle of the Constitution’s Article III judicial power. They deploy a famous quotation of Alexander Hamilton in Federalist 78, “that the Court is ‘the bulwark of a limited constitution against legislative encroachments,’” adding that “Ramesh would have the Court abandon that role.”
Their quotation, containing the key phrase “a limited constitution,” appears in the 17th paragraph of Fed. 78. Here is the 9th paragraph (my emphasis), where Hamilton defines that term:
The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
When we turn to section 2 of the Fifteenth Amendment, however, we have, not a “specified exception to the legislative authority,” but a grant of legislative authority, and Hamilton’s “bulwark” remark might be said hardly to apply at all. That provision reads, “The Congress shall have power to enforce this article by appropriate legislation.”
But anyway, von Spakovsky and Slattery seem to be begging the question. They and Ramesh agree that the Court should strike down unconstitutional acts of Congress that properly come within the purview of the Court. But they as much as say that he would throw in the towel on judicial review altogether, in the name of “deference.” Not so; he was casting doubt on whether the VRA’s provision for preclearance in certain jurisdictions is an unconstitutional act within the purview of the Court to invalidate. Now, he on the one hand and von Spakovsky and Slattery on the other might disagree about whether there is a category of a) unconstitutional acts that are b) not within the purview of the Court to invalidate. If von Spakovsky and Slattery think there can be no such category, then they embrace a version of judicial supremacy. That’s their prerogative, but it’s stealing a base to say that someone who holds a more modest version of judicial review is somehow abandoning the principles of the Constitution (which is the burden of the “he’s contradicting Hamilton” claim).
While I’m at it, there’s another interesting wrinkle to the von Spakovsky-Slattery argument. They seem to equivocate a little on whether VRA Section 5 was constitutional in 1965, but became unconstitutional as its stated rationale became less empirically defensible, or has always been unconstitutional. Sometimes it seems they think it was okay at first, but is no longer; but one could read them as saying that Section 5 was invalid from the first. There’s something appealingly consistent and defensible about the latter view. But if it was right for the Court to defer long ago to Congress’s judgment of what is appropriate, it is hard to see what contitutional requirement now converts that imperative for deference into an imperative for the opposite.