Voting Rights: A Conservative Ruling

The Supreme Court's ruling on a key component of the Voting Rights Act shows how judicial conservatism can redound to the benefit of political liberalism.

The case concerned a challenge to an extension of the requirement that various states and localities submit election-law changes to the federal government for review. The requirement means, for instance, that any time a locality in Virginia wants to move a polling place, it has to ask permission first. "Preclearance," as it is called, explains why Richmond's switch to a strongmayor system did not adopt a simple majority vote, but rather demands that a candidate win a majority in five of the city's nine councilmanic districts. At the time, it was thought that a citywide, at-large system would not win Justice Department approval.

The High Court could have tossed out preclearance altogether. After all, it was supposed to be only a five-year remedy, yet Congress has extended it in the face of widespread evidence that it is no longer needed. Instead, the court ruled on narrow technical grounds that the Texas utility district at issue in the case had the ability to bail out of preclearance just like other jurisdictions do.

That reflects the incrementalist predisposition of Chief Justice John Roberts, who prefers to avoid sweeping decisions that cause huge political disruptions. "The importance of the question" about the constitutionality of preclearance in general, Roberts wrote, "does not justify our rushing to decide it." That is conservatism in the lower-case, non-ideological sense -- which can be, as it was in this instance, disappointing to movement conservatives who want the High Court to act as a sort of super-legislature to achieve their political ends.

That, of course, is the approach also generally favored by liberals -- who today are grateful that the justices did not act as liberal activists likely would have done in their place.