The strange jurisprudence of Justice Thomas

Charles J. Ogletree Jr. | 7/1/2009, 5:18 a.m.

The strange jurisprudence of Justice Thomas

On Monday, June 22, 2009, the U.S. Supreme Court issued a surprising ruling on the constitutionality of Section 5 of the Voting Rights Act of 1965. Filed by the Northwest Austin Municipal Utility District (NAMUD), the lawsuit argued that the district should be granted a “bailout” from the pre-clearance requirement of the Voting Rights Act. This requirement had been inserted into the legislation to monitor the conduct of states and districts that had engaged in past discriminatory voting practices in order to make sure they did not repeat those violations.

An alternative remedy sought by NAMUD was that the Supreme Court declare the entirety of Section 5 unconstitutional. The court’s unexpectedly united 8-1 opinion, written by Chief Justice John Roberts, concluded that the district could qualify for a bailout, but that it would not consider a constitutional challenge to Section 5.

The lone dissent to this decision was written by Justice Clarence Thomas, the only African American on the Supreme Court and a skeptic of many forms of civil rights. In essence, Justice Thomas argued that monitoring discriminatory practices may have been relevant in the 1960s, but it was no longer necessary in today’s voting.

Thomas stood alone among the court in taking this position. When we consider the history of recent elections, most egregiously — but by no means exclusively — the Florida debacle of 2000, his suggestion that protection of voting rights is now unnecessary is utterly breathtaking. In his dissent, he stated, “… the rebellion against the enfranchisement of blacks in the way of the ratification of the Fifteenth Amendment illustrated the need for increased federal intervention to protect the right to vote.”

But he went on to make it clear that things have changed in a positive way over subsequent decades. To support his notion, he pointed out that “the [voter] registration rate for blacks in Alabama rose only from 14 percent to 19.4 percent between 1958 and 1964; in Louisiana it barely inched ahead from 31.7 percent to 31.8 percent between 1956 and 1965; and in Mississippi it increased only from 4.4 percent to 6.4 percent between 1954 and 1964.”

Justice Thomas’ dissent concludes that “the extensive pattern of discrimination that led the court to previously uphold Section 5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence.”

What Justice Thomas’ dissent illustrates, and what the majority makes clear, is that we have made considerable progress, but we have not reached a point at which concerns about voter intimidation and disenfranchisement are no longer present. Indeed, when one considers the myriad examples of questionable voting patterns and practices across America, there are deliberate attempts being made to undermine the ability of African Americans to vote and ensure that these votes are counted.

As was pointed out during the hearing before the District Court in this case, discriminatory practices continue unabated and Section 5 is as urgently needed in the year 2009 as it was in the year 1965.