John Roberts Just Told Congress How to Fix Bad Supreme Court Decisions

In a stunning 5–4 ruling issued last week in Allen v. Milligan, the Roberts Court, long a foe of the Voting Rights Act, upheld a key component of the VRA and struck down Alabama’s discriminatory congressional maps. It was not until Reconstruction that the 13th, 14th, and 15th amendments each gave Congress the power to “enforce” the Constitution’s new guarantees of freedom, equality, and voting rights, by “appropriate” legislation. Rather than follow the text and history of the enforcement power, the conservative wing of the Supreme Court has invented out of whole cloth a test for second-guessing Congress’ exercise of its power—the so-called congruence and proportionality test—ignoring the Reconstruction Framers’ structural choice to create a new, expansive congressional power to protect fundamental rights and make equal citizenship a reality. Along these lines, in Shelby County v. Holder, Roberts wrote the court’s abominable 5–4 opinion holding that the 15th Amendment’s enforcement power did not permit Congress to extend the preclearance requirement of the act—one of the act’s most effective weapons against racial discrimination in voting—prompting Justice Ruth Bader Ginsburg to offer a history lesson in dissent: “The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States.” It is cause for celebration that Roberts’ majority opinion in Milligan, in stark contrast to Shelby County, adopts a constitutionally faithful understanding of the broad scope of Congress’ enforcement power. Milligan thus provides a crucial template for court reform: Congress should use its enforcement power to restore rights gutted by the court, as Congress did with the Voting Rights Act’s results test, and fulfill its constitutional duty to enforce the fundamental guarantees of freedom and equal citizenship that lie at the core of the Reconstruction Amendments.