Statutory Interpretation, Constitutional Limits, and the Dangers of Collaboration: The Ironic Case of the Voting Rights Act

The Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the “goddamnedest toughest” legislation possible. But the President and the 89th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in the fight against voting discrimination. Unsure about the constitutional boundaries at issue, Congress and the administration left many things unsaid, wishing for the Court to extend the substantive provisions of the Act as far as constitutionally permissible. This account turns the conventional wisdom on its head. The Warren Court –widely considered a bastion of liberal policy-making and judicial activism – interpreted the statute precisely in accordance to congressional wishes. Yet this proved to be a risky strategy, for as soon as the Court’s composition changed, so did its collective view of the statute. In other words, it is the Rehnquist Court who has demonstrated a penchant for judicial activism under the guise of strict constructionism. As Congress debates the upcoming extension of the Voting Rights Act in 2007, this is a condition of the Act to which Congress must close attention