Justice Thomas redefines ‘activist’

Anyone who believes that only “liberal” judges are “activists” should read Justice Clarence Thomas’ dissent in this week’s Supreme Court ruling on the Voting Rights Act in Northwest Austin Municipal Utility District No. 1 v. Holder.

If an activist is a judge who wants to use the power of the courts to substitute his preference for the will of the people’s elected representatives, then Thomas fits the definition.

Legal scholars have known this about Thomas for some time. But still he gets held up as a stellar example of a “conservative” by those who spit “activist” as an epithet synonymous with “liberal.”

There are times when justices can and should tell the legislative branches they’re wrong or they’re not doing their job. Sometimes, whether “activism” is acceptable depends on whether you like the outcome.

In the voting rights case, Thomas was the only one of the nine justices who wanted to throw out Section 5 of the 1965 Voting Rights Act as an unconstitutional intrusion on states’ rights.

It’s not that other members of the court weren’t grinding their teeth over the provision. But none of them was prepared to substitute his or her judgment for Congress’ at this point. In fact, Chief Justice John Roberts wrote the court’s opinion that decided the case on narrow grounds, basically avoiding for now a decision on Section 5’s constitutionality.

Some analysts are saying that Roberts essentially rewrote the law to achieve that result, an activist act in itself. Even under that interpretation, though, he backed away from a heavy-handed judicial pronouncement on a key civil-rights law most recently reauthorized in 2006.

The 15th Amendment, which guarantees the right to vote free from impediments based on race, color or “previous condition of servitude,” directly empowers Congress to enforce it through “appropriate legislation.”

Of course, like many constitutional provisions, defining what’s appropriate is left up to Congress and the courts.

Section 5 has been controversial from its inception because it requires only certain states, mainly from the old South, to get Justice Department clearance for any revisions in election procedures. Redraw congressional districts? Pre-clearance required. Switch from at-large voting to single-member districts? Pre-clearance required. Change school board district boundaries? Pre-clearance required.

Texas is one of the states that must go through pre-clearance. And the Northwest Austin MUD, which never has been accused of racially discriminating against voters, argued that if it couldn’t get exempted from the requirement the law must be unconstitutional.

Even those who want to do away with Section 5 acknowledge that in the 1960s it was an effective way to enforce equal rights against states that eluded their obligations by adopting onerous tests and arbitrary restrictions that prevented blacks from voting.

“Enforcement efforts before the enactment of Section 5 had rendered the right to vote illusory for blacks in the Jim Crow South,” Thomas wrote. “Despite the Civil War’s bloody purchase of the 15th Amendment, the reality remained far from the promise.”

But the world has changed, he said, and the law should reflect that.

In his 19-page dissent, Thomas pointed out that in seven states covered by Section 5, black voter registration exceeds the national average. He noted that in Texas black registration and turnout in the 2004 election was higher than for whites.

For Thomas, that was evidence the law no longer meets the threshold for being a constitutional exercise of congressional power over the states.

But his argument could just as easily have been one made on the House or Senate floor for why Section 5 should be dropped. But Congress reauthorized it. And that makes Thomas sound as though he simply wants to override a choice he doesn’t like.

More than 40 years after the Voting Rights Act became law, “the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains,” he said.

And he doesn’t believe that states should continue to be burdened based on “second-generation barriers,” racial polarization or “discrete and isolated incidents of interference with the right to vote.” His bottom line: Extreme circumstances justify extreme remedies, but anything else falls short.

Reasonable people can argue that subtle behavior continues that unfairly suppresses minority voting. Likewise, reasonable people can argue that it’s unfair to keep putting jurisdictions through the delay and expense of pre-clearance when they’ve largely cleaned up their act or never acted egregiously in the first place.

But it’s hard to argue that only “liberal” judges are “activists” who try to shape the law to their preference.