Yesterday, Senate Judiciary Committee Chair Sen. Patrick Leahy (D-VT) delivered a speech at the University of the District of Columbia’s David A. Clarke School of Law, during which he discussed the Supreme Court and the nomination of Judge Sonia Sotomayor to replace retiring Justice David Souter.

During his speech, Sen. Leahy highlighted the Court’s imminent decision in Northwest Austin Municipal Utility District No. One v. Holder (NAMUDNO), expected to be the Court’s most significant ruling of the Term and, as Senator Leahy called it, “one of its most important decisions in years.” The plaintiff is this case, a utility district in Texas, has challenged the constitutionality of the reauthorization by Congress of a key provision of the Voting Rights Act of 1965 — the “preclearance” provision. Given questions posed by a number of the conservative Justices during April’s oral argument, it is widely expected that the Court will rule that Congress exceeded its constitutional authority in 2006 when it voted overwhelmingly (98-0 in the Senate) to reauthorize the preclearance provision. That action was taken by Congress, as Sen. Leahy stated yesterday, based on extensive hearings and written testimony indicating the provision still played an important role in preventing racial discrimination in voting.

Earlier this year, Constitutional Accountability Center filed an amicus brief in NAMUDNO demonstrating that the authority to ensure the right to vote free of racial discrimination is entrusted to Congress by the text and history of the Reconstruction Amendments of the Constitution — the 13th, 14th, and 15th Amendments. Last week, we released a report, entitled The Shield of National Protection: The Text and History of Section Five of the Fourteenth Amendment, examining in greater detail the text and history of those Amendments and the broad powers given to Congress to enforce their guarantees of liberty, equality, and the right to vote. Sen. Leahy underscored these same points in yesterday’s lecture:
In law schools across the country, students are taught that there is no more explicit grant of power to Congress than that given by the 15th Amendment to protect the right to vote…. Since the initial court challenges in 1966, whenever the Supreme Court has reviewed or even cited to the Voting Rights Act, it has affirmed the Act as a valid exercise of congressional authority. The Court should not depart from these precedents. It should not substitute its own judgment for that of Congress. Striking down the Voting Rights Act would be conservative activism pure and simple.
Sen. Leahy couldn’t have said this better. If the Supreme Court strikes down the pre-clearance provision of the Voting Rights Act – one of our country’s most important and successful pieces of civil rights legislation – it would be ignoring constitutional text and history and trampling on the powers plainly given to Congress by the Constitution. This point, sadly, continues to be lost on conservatives like Roger Clegg who pointedly ignore that the Fifteenth Amendment was written to give Congress a central role in securing the right to vote. In light of this constitutional design, courts have no business second-guessing Congress’ determination that iconic civil rights laws – like the Voting Rights Act – are still needed to prevent and deter racial discrimination.

As Sen. Leahy pointed out when contrasting Judge Sotomayor’s record to the records of the most-recently confirmed Justices, such conservative activism has grown alarmingly in recent years:
For all the talk about “judicial modesty” and “judicial restraint” from nominees at their confirmation hearings, we have seen a Supreme Court these last four years that has been anything but modest and restrained.

For those who care about the Constitution, the question we should be asking is whether Judge Sotomayor will act in the mold of conservative activists who have gutted legislation designed to protect Americans from discrimination in their jobs and in voting, laws meant to protect the access of Americans to health care and education, and laws meant to protect the privacy of all Americans from an overreaching government…. Judge Sotomayor’s considerable record is that of a restrained and thoughtful jurist who understands the role of the judge.
We hope that the current Justices, including those who most vocally proclaim allegiance to the text and history of the Constitution and to the judicial philosophies of “restraint” and “modesty,” vote to protect the integrity of the Voting Rights Act in the manner deemed necessary by Congress. The question whether the pre-clearance provision of the Voting Rights Act is practical, effective, or necessary is simply not the Court’s to answer. The only pertinent question is whether Congress acted within its constitutional power when it deemed the preclearance provision practical, effective, and necessary for another 25 years, and to this, the text and history of the Constitution and precedent are abundantly clear. The answer is a simple “yes.”