Friday, August 30, 2013

Holmes and the Voting Rights Act

You might not think Justice Holmes had an opinion about Section 4 of the Voting Rights Act of 1965, but Justice Clarence Thomas summoned up his ghost, and his authority, in Shelby County, Alabama v. Holder, decided just last June. Justice Thomas in his separate opinion claimed that Section 4 was unconstitutional, despite the elaborate finding by Congress that it was still needed to enforce the commands of the Fifteenth Amendment, which prohibits states from discriminating by race in voting. Justice Thomas cited Holmes's opinion in Giles v. Harris (1903), maybe not Holmes best moment but the opinion certainly should give no comfort to Thomas or his brethren in the majority. Holmes wrote an opinion in that case explaining that the Court could not issue an injunction to halt the outrageous racial discrimination going on in Alabama, without prior authority from Congress.... Not exactly the argument you should make when striking down a Congressional mandate to halt outrageous race discrimination by race in Alabama. Sigh. Justice Thomas should know better; he was photographed, looking rather unhappy it is true, during his confirmation hearing holding a copy of my book Honorable Justice: The Life of Oliver Wendell Holmes.