Note to the Chief: Umpires are known by company they keep

Last year, Chief Justice John Rob- erts was faced with a dilemma when the Affordable Care Act came up for review by the Supreme Court of the United States. He held the deciding vote in whether the court would uphold a signature piece of legislation by President Barack Obama and the Democratic Congress or risk being branded an activist court.

Roberts had famously described a justice’s role as that of an umpire — someone who doesn’t make the rules but only interprets them. No one comes to a ball game to see the umpire, he said.

And he played that role artfully in the opinion he wrote in National Federation of Independent Business v. Sebelius upholding enough of Obamacare that the most important parts of the Affordable Care Act survived.

As a result, Roberts could still expect people to see him as a man who practiced judicial restraint and his court avoided the taint of activism.

A new challenge

This year, Roberts faces another even more dramatic challenge as the court considers a challenge by Shelby County, Ala., of the Voting Rights Act of 1965.

In his questioning during Wednesday’s oral arguments, it appeared clear that Roberts was inclined to see the law as an unnecessary remnant of the past.

The Voting Rights Act was passed in 1965, not long after civil rights workers were murdered for attempting to register black voters in the South. But what has become its most controversial provision — a requirement that certain states or parts of states must ask for Justice Department review before tampering with laws that affect voter access — was not limited to the South. It applied to all of Alabama, Georgia, South Carolina, Texas, Alaska, Arizona, Louisiana, Mississippi and Virginia, and parts of California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota.

The argument before the court was that those states and targeted regions have made so much progress toward open and fair elections regardless of race that they should no longer be subject to the onerous burden of asking the Justice Department or a federal court for permission to change the way they conduct elections.

High hurdles for a high court

The problems facing the strict constructionist was that the law has been upheld by the Supreme Court four times in the past, and every justice on the court has pledged fealty to the concept of court precedent. And, perhaps even worse, the law was not only passed by Congress by a vote of 77–19 in the Senate and 333–85 in the House, it has been periodically renewed. The last time was in 2006 by a vote of 98-0 in the Senate and 390-33 in the House.

Under normal circumstances, it would be difficult but not impossible to overturn the Voting Rights Act without being seen as activist. And then Justice Antonin Scalia opened his mouth and made the task almost unthinkable.

Scalia suggested that because the law has gained support in Congress over the years, Congress could no longer be trusted. The support he said is “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” Yes, he called equal access to voting a racial entitlement. And then he said that, “whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” In other words, if in Scalia’s opinion, members of Congress can’t bring themselves to vote to amend the Voting Rights Act, it is the job of the Supreme Court to find the law unconstitutional.

Roberts, Scalia and the three other court conservatives have the votes necessary to overturn the law, and all appeared inclined to do so.

But they can’t do so without endorsing Scalia’s radical suggestion that when Congress acts with near unanimity on an issue, its motives must be suspect, and it is only proper for the appointed justices to substitute their wisdom for that of the elected Congress.

The word activism doesn’t come close to describing that kind of judicial arrogance.

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