by Marcia Coyle
The Ricci case and its final decision would take on even greater prominence later that summer during the Senate Judiciary Committee’s hearings on President Obama’s nomination of Judge Sonia Sotomayor to succeed Souter. Sotomayor sat on the three-judge appellate panel that ruled against the white firefighters, who then took their appeal to the Supreme Court. Her role in the case would become a target for Senate Republicans and others opposing her nomination.
On the term’s final day of arguments, the justices took up the second race-related case, a potential blockbuster involving race in a very different context. Chief Justice Roberts would lead the Court’s decision, and that decision may well have been the unusual precursor to Roberts’s ruling in the landmark health care case in 2012.
The Voting Rights Act of 1965 took center stage in Northwest Austin Municipal Utility District No. 1 v. Holder, commonly called NAMUDNO. By 1965, violence and other acts of terrorism had injured and taken the lives of voting rights activists in southern states hostile to giving black Americans the full enjoyment of their rights under the Fifteenth Amendment. The U.S. Department of Justice was making little headway in fighting discriminatory voting practices on a case-by-case basis in those states because as soon as it won a case against one particular discriminatory practice, a new practice would emerge to replace it.8
President Lyndon Johnson and Congress decided that tougher, more effective anti-discrimination laws were needed. The result was the Voting Rights Act, considered the nation’s most effective civil rights law. The act has two critical provisions, one permanent—Section 2—and the other temporary but periodically reauthorized by Congress—Section 5.
The act’s Section 2 bans racial discrimination in voting nationwide. Section 5 requires certain state and local jurisdictions with a history of voting discrimination to obtain federal approval (known as “preclearance”) of proposed changes in their voting or election procedures. Those so-called covered jurisdictions (nine states and portions of seven others) must demonstrate either to the Justice Department or the federal district court in Washington, D.C., that the proposed change does not have the purpose or effect of denying the right to vote on account of race, color, or language-minority status. Covered jurisdictions could bail out by showing they had not run afoul of the act for the past five years. Section 5 is widely regarded as the heart of the Voting Rights Act.
By 2009, when the justices took up the NAMUDNO case, Congress had reauthorized the act five times, most recently in 2006 when the House and Senate, by an overwhelmingly bipartisan vote, extended its provisions for an additional twenty-five years. Congress acted after holding twenty hearings and collecting more than 17,000 pages of testimony documenting the continued need for the act.
Ten days after the 2006 extension was signed by President George W. Bush, the Northwest Austin Municipal Utility District No. 1, a small water district within Austin and Travis counties in Texas (a covered jurisdiction), challenged the act in federal district court. Edward Blum, head of the one-man, conservative activist organization the Project on Fair Representation, recruited the water district in order to make the constitutional challenge to Section 5.
Blum, a non-lawyer, is a longtime opponent of race-based laws, who raises funds and finds lawyers to bring lawsuits against racial classifications by public entities. He is the moving force behind the affirmative action challenge to the University of Texas’s admissions policy scheduled for argument and decision in the 2012–13 Supreme Court term, as well as another Section 5 voting rights challenge to be decided in that same term.9
Blum’s contact with the water district came via the late Gregory Coleman, a former Clarence Thomas clerk, a former Texas solicitor general, and a formidable appellate attorney. Coleman, who represented the white New Haven firefighters in the Ricci case, knew the head of the water district and suggested him to Blum when Blum was looking for a plaintiff to bring the Section 5 lawsuit.
The water district wanted to move its elections from private homes and garages to a school or another public place, but it chafed under the federal law’s preclearance requirement for making election changes. In its lawsuit, it sought to use the bailout provision in the Voting Rights Act, arguing that the district had never discriminated in voting and had always received approval for its election changes. Failing that option, it argued that Section 5 was unconstitutional. The federal court ruled against the water district on both claims and the district appealed to the Supreme Court.
During the April 29 arguments, the justices again appeared to split into two camps. Justices Breyer, Ginsburg, and Souter challenged Coleman, representing the water district, on his basic argument that times have changed significantly since enactment of the Voting Rights Act and that Congress could not justify its 2006 extension of the act using the formula and outdated evidence that it relied upon. The three justices pointed to statistical evidence in the congressional record of enforcement actions by the Justice Department that, they said, showed some improvement in voting practices in covered jurisdictions but not enough to justify abandoning Section 5.
However, Coleman countered that Congress failed to compare covered and non-covered jurisdictions to see where problem locations exist today. “Preclearance once again is based on the results—well, whether there was a [discriminatory voting] test or device in the 1960s and the results of the 1964, 1968, and 1972 presidential elections,” he said.
His opponent, Principal Deputy Solicitor General Neal Katyal, told the Court, “After 16,000 pages of testimony, 21 different hearings over 10 months, Congress looked at the evidence and determined that their work was not done.” Katyal soon faced tough questioning, primarily from Roberts and Kennedy.
Roberts noted that one twentieth of 1 percent of requests for preclearance of election changes are rejected. “That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment,” said Roberts. But Katyal said the numbers suggest Section 5 is working well and is a deterrent. To which Roberts rejoined, “Well, that’s like the old—you know, it’s the elephant whistle. You know, ‘I have this whistle to keep away the elephants.’ You know, well, that’s silly. Well, there are no elephants, so it must work.”
Roberts also questioned the repeated extensions of Section 5 by Congress since 1965. At some point, he said, it begins to look like it will go on forever. And Kennedy, pointing to the small number of bailouts approved by the government, called bailout an “illusion,” which gave him pause as to Section 5’s constitutionality.
By the end of the arguments, Section 5’s constitutionality appeared in serious trouble with five justices inclined to strike it down. The high stakes in the case were reflected in dozens of amicus briefs filed by a range of organizations, scholars, and public figures, remarkably similar to the outpouring in the Seattle-Louisville school cases.
When a term’s arguments end in April, the entire building seems to breathe a collective sigh of relief. Although the justices had been writing and issuing decisions throughout the term, the heaviest writing begins as the arguments end. However, relief this term was short-lived. Two days after arguments in the voting rights case, the White House officially announced Justice Souter’s retirement. The justice would not stay until his successor was confirmed, as O’Connor did, but said his last day would be the term’s last day. The Court was heading into its third transition in just four years.
Speculation about Souter’s successor did not last long. President Obama made his choice known less than a month later: fifty-four-year-old Judge Sonia Sotomayor of the U.S. Court of Appeals for the Second Circuit, the federal appellate court whose territory includes New York, Connecticut, and Vermont. Obama, according to later reports, apparently had focused on the Hispanic American, Bronx-born Sotomayor during his own transition to the presidency some six months earlier in discussions about potential Supreme Court candidates. Sotomayor and Harvard Law dean Elena Kagan topped his list. A ques
tionnaire that Sotomayor completed for the Senate Judiciary Committee before her confirmation hearings began showed that White House lawyers actually contacted her about the potential nomination on April 27—four days before National Public Radio broke the first news report of Souter’s retirement.
After the May 26 announcement of Sotomayor’s selection, attention shifted again to the Court while the Senate Judiciary Committee, the White House, and outside advocacy groups prepared for the July 13 confirmation hearings.
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In early June, the Court issued the decision in the West Virginia coal mine case—Caperton v. A.T. Massey Coal Co. A 5–4 majority, led by Kennedy, held that the constitutional guarantee of due process—here of a fair tribunal—required the judge who was elected with financial support from Don Blankenship to step aside from hearing Blankenship’s appeal of a $50 million jury award.
“We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent,” wrote Kennedy.
The key factors to consider, he explained, were the contribution’s relative size in comparison to the total amount of money contributed to the campaign; the total amount spent in the election; and the apparent effect the contribution had on the election’s outcome.
Chief Justice Roberts, joined by Scalia, Thomas, and Alito, disagreed. Roberts said the majority’s new rule—that due process requires judges to step aside when there is a “probability of bias”—offered no real guidance to judges and litigants because it was too vague. “This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be,” he wrote. “The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.” Roberts then listed forty questions that judges and litigants will have to grapple with as a result of the majority’s decision.
Although Kennedy said the case presented an extraordinary situation, his analysis that large independent expenditures had the potential to influence—corrupt—a judge’s judgment would later feed criticisms of his final decision in Citizens United. How could those independent expenditures be “corrupting” in that judicial election, but not corrupting or giving the appearance of corruption in other political campaigns?
In June, Citizens United’s Bossie and Boos started going to the Court every day on which decisions were scheduled for release. The Court will announce—usually one week ahead—what days will be decision days, but it never reveals the names of the cases.
“We waited and waited and waited,” recalled Bossie. “We were thinking if the decision came in the last week or two, it must be controversial. As it came down to the last week and then the last day, we were in sheer panic. How big could this be?”
On June 29, the last day, four cases remained: Citizens United; the New Haven firefighters’ challenge; the Texas voting rights case; and a case involving the New York attorney general’s fight with the U.S. Office of the Comptroller of the Currency over the attorney general’s authority to continue an investigation into predatory lending practices by national banks.
Before Bossie, Boos, and Olson took their seats that morning, the clerk of the Court, William Suter, approached Olson and said that he needed to speak with him as soon as the session ended. “I thought, ‘What in the world have I done?’ ” recalled Olson.
Solicitor General Elena Kagan and her principal deputy, Neal Katyal, also were in the courtroom. “And Suter comes up to us and says, ‘I need to tell you something very unusual is going to happen,’ ” remembered Katyal. “And then we said, ‘Okay, what?’ He says, ‘I can’t tell you, but you need to know something very unusual is going to happen.’ We were, like, what’s going to happen? Are we going to have an argument next week or what?” He chuckled in amazement.
The clerk left the three lawyers in suspense as the justices opened their final session. By tradition, a justice who has the majority opinion in a case reads a brief summary from the bench. A dissenting justice also may occasionally read a summary, and that usually signals strong disagreement. The justices read their opinions according to seniority, with the chief justice always last.
Kennedy started off with the decision in Ricci, the firefighters’ case. Joined by Roberts, Scalia, Thomas, and Alito, Kennedy held that the white firefighters were discriminated against because of their race when the city refused to certify promotion test results because black firefighters had scored so poorly. Although the city had argued it acted in good faith because it feared a disparate impact suit by the black firefighters, Kennedy said, “Fear of litigation cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
The Kennedy majority said the city had to have “a strong basis in evidence” that it faced a disparate impact lawsuit if it certified the results, and there was no evidence in this case. The majority had created a new standard to apply in these types of disputes, but instead of sending the case back to the lower court to see if the city could meet the new standard—the usual course—the majority ruled outright for the white firefighters.
Leading the four dissenters, Ginsburg also read a summary of her dissent. She noted the long history of discrimination against minorities in municipal fire departments. The majority, she said, ignored “substantial” evidence that the New Haven test was flawed. “By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions,” she said.
The dissent would have ruled that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate treatment bar automatically or at all if the employer has good cause to believe it could not defend the test as job-related.
The decision disappointed both civil rights groups and employers, the former because it appeared to make it harder to weed out the more difficult and subtle form of race discrimination—disparate impact—and the latter because the new standard was rather muddy and likely to trigger more lawsuits. The majority’s decision, however, was more restrained than it could have been. The Roberts Court had decided the case under the federal statute, Title VII, and had avoided a more sweeping ruling by deciding whether the city’s action violated the Constitution’s equal protection clause.
Nevertheless, two dramatically different worldviews had collided again in the Court. In the Seattle-Louisville school cases, the Court’s conservative majority said the school districts’ use of race as a tiebreaker in assigning students in order to preserve integration was an unconstitutional racial classification just as were those racial classifications that once segregated students. The dissenting liberals viewed the use of race by the school districts as exactly the opposite of those historically used to demean or subject black Americans. And, in Ricci, the same majority found that the city violated Title VII’s ban on intentional discrimination when it made the race-conscious decision to discard the test results in order to avoid Title VII’s ban on disparate impact discrimination. The same dissenters said a race-conscious decision to discard the test because of reasonable doubts about its reliability could not be considered discrimination “because of race.”
From Seattle to New Haven, Roberts and his conservative colleagues continued a march toward zero tolerance of government’s use of race classifications for any purpose.
After Ricci, Justice Scalia had the opinion in the bank case. In an unusual alignment with the Court’s four more liberal justices, Scalia held that state attorneys general could enforce
their state fair lending laws against national banks. Chief Justice Roberts then announced that he had the opinion in the Texas water district’s challenge to Section 5 of the Voting Rights Act.
Defying predictions and speculation after the arguments, Roberts, with only Thomas dissenting, interpreted the law in a way that avoided the constitutional question.
“Our usual practice is to avoid the unnecessary resolution of constitutional questions,” wrote Roberts. “We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of Section 5.”
Roberts, quoting a 1927 high court decision, noted that judging the constitutionality of an act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” And while the Court will not “shirk its duty,” he added, there is a well-established principle that the Court will not decide a constitutional question if there is some other ground on which to dispose of the case. In the water district’s case, that other ground was its argument that it was entitled to bail out of the preclearance requirements.
Thomas, dissenting, said he would strike down Section 5 as exceeding Congress’s power to enact laws under the Fifteenth Amendment.
Some experts and scholars later would see in Roberts’s decision upholding the Obama administration’s health care law, where he found an interpretation that saved the statute, traces of this approach in NAMUDNO.
Even though the Roberts majority saved for another day the battle over the heart of the Voting Rights Act, the chief justice devoted considerable time in his opinion to explaining why Section 5 raised serious constitutional problems. It was a virtual road map for Congress to act if it wanted to avoid a showdown with the Court. And that showdown was definitely coming. Challenges to Section 5, including one backed by Blum, the same man behind NAMUDNO, were already moving through the lower court pipeline. Blum’s case, Shelby County, Ala. v. Holder, reached the Supreme Court in July 2012, and the justices in November of that year agreed once again to decide the constitutionality of Section 5.