What exactly is justice? Is it fairness, equality, or impartiality?

However one defines it, the one thing justice is not is outcome based.

I vehemently disagreed with the outcome of the recent Supreme Court ruling that gutted Section 5 of the Voting Rights Act. But my primary concern was not the outcome, but how the decision was reached.

At the heart of the Voting Rights Act is the 15th Amendment, the last of the Reconstruction Amendments. The 15th Amendment provides the right to vote shall not be denied or abridged based on race, color or previous servitude.

Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the U.S. attorney general, or after a lawsuit before the U.S. District Court for the District of Columbia.

This meant that voting changes in states that had previously conducted voter suppression during the Jim Crow era must have the approval of the Justice Department to modify voting procedures.

It was the landmark case of Marbury v. Madison (1803) in which the court defined the basis for judicial review that set the constitutional boundaries between the judiciary, executive and legislative branches of government. The judiciary branch is charged with saying what the law is, not what it should be.


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Nowhere does the majority opinion find the VRA in violation of the 15th Amendment. Instead it offers a sociopolitical explanation for striking down Section 5.

On page 15 of the majority opinion there is a graph that illustrates the influence of the VRA between 1965 and 2004. In Alabama, one of the states targeted in Section 5, 69.2 percent of whites were registered to vote in 1965, while only 19.2 percent of blacks were registered. In 2004, it was 73.8 to 72.9 respectively.

This is a clear indicator of the VRA's effectiveness.

But Chief Justice John Roberts writing for the majority opined:

"In assessing the 'current need' for a preclearance system that treats states differently from one another today, that history cannot be ignored. During that time, largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers."

Isn't the chief justice moving beyond the scope of his prescribed role?

Congress has renewed the Voting Rights Act four times -- most recently in 2006 by an overwhelming 390-33 vote in the House and a 98-0 vote in the Senate.

The most recent reauthorization of the VRA came after congressional hearings and debate. Congress then proceeded with its constitutionally ordained responsibility to make law.

If Congress is charged with making laws and the court is charged with interpreting the law, how is the VRA ruling not legislating from the bench? With few exceptions, there is deafening silence from right-wing thinkers because the outcome met with their approval.

With jetlike speed, several states previously under Section 5 have moved to make it more difficult to vote. Their actions in particular will adversely impact those on society's margin who tend to vote Democratic.

Given that the court's modus operandi to reach the VRA ruling was political rather than constitutional, the big loser might be the Republican Party that largely applauded the decision.

America's changing demographics have been well documented. If the Republican Party wishes to be competitive with minority, young and poor voters because the political landscape demands it, can it afford to be seen as the party that supports legalized voter suppression?

Moreover, can it be the party that claims strict adherence to the Constitution, while the conservative chief justice conveniently ignores the merits of Marbury v. Madison so that justice is defined simply by the outcome?

Contact Byron Williams at 510-208-6417 or byron@byronspeaks.com.