The 15th Amendment says the right to vote shall not be “denied or abridged” on account of race. In 1982 the Voting Rights Act was amended to proscribe any practice, regardless of discriminatory intent, that “results” in denial or abridgment of that right. The test is whether minority voters have less opportunity than others “to participate in the political process and to elect representatives of their choice.”
Now, never mind the damage done to democracy by the notion of group entitlements - that certain groups are denied the right to vote if members of those groups do not have an appropriate chance to win. (Judges shall decide what is appropriate.) Never mind the judicial fiddling with elections that is entailed by government’s determination to deal with “dilution” of the voting power of certain favored minorities. What was new in the two cases arising from Louisiana and Texas was the contention that certain practices (concerning, for example, the size of electoral districts) in judicial elections constituted impermissible dilution, hence denial of the right to vote for “representatives.”
A lower court said the Act does not apply because judges are not representatives. The Supreme Court disagreed. Justice Stevens, joined by White, Marshall, Blackmun, O’Connor and Souter, said: In 1982 Congress broadened the Act to prevent even diluting “results” that are not produced by intentional discrimination. “It is difficult to believe,” Stevens said, that Congress used the word “representatives” to withdraw from the Act’s coverage a category of elections (of judges).
Justice Scalia, joined in dissent by Rehnquist and Kennedy, said: The Court should stop psychoanalyzing Congress and should read the law’s language. Scalia said the proper procedure for determining a statute’s meaning is to find the ordinary meaning of the language in its context and then decide if there is clear evidence that some other meaning applies.
Instead, the Court began not with the statute’s language (“representatives”) but with a surmise about what the statute means, given what Congress did not say. (Congress did not explicitly say, other than in the use of the term “representatives,” that judicial elections were not covered.) This, says Scalia, is the Conan Doyle school of statutory construction, named after the Sherlock Holmes story in which the crucial clue is a dog that didn’t bark.
The Court simply asserts that “representatives” are any persons chosen for any role “by popular election.” Oh? says Scalia. Then the members of baseball’s All Star teams are “representatives.” The term “representatives” is broader than “legislators” but narrower than “candidates,” which is the logical term for Congress to have used if it wanted to bring all elections under the coverage of the Act. Representatives have various duties, but always are expected to consider the political desires of their constituents. Judges should be impeached for serving such desires.
The Court’s cavalier definition of “representatives” to include judges comes in the context of the amended Act’s concern with “dilution” of minority voting power. There fore the misuse of “representatives” serves to apply to courts today’s pernicious theory of “category representation.” The theory holds that the interests of particular racial, ethnic and sexual groups can be properly represented only by members of those groups.
Because category representatives are by definition agents of their groups, they are not morally required to try to comprehend and assimilate other interests. The idea of category representation is bad enough when applied to real representatives; it is worse when applied to judges. Representatives act on behalf of constituents, judges on behalf of the law.
The Court, says Scalia, should not scavenge the universe of English usage to see if any possible meaning of “representatives” suits the Court’s preconception that Congress must have meant to include judicial elections in the amended Act’s coverage. By not being content to read the ordinary meaning of the plain language of the Act, the Court, says Scalia, has poisoned the well of future legislation, “depriving legislators of the assurance that ordinary terms, used in an ordinary context, will be given a predictable meaning.” The Court, he says, was derelict in its duty “to read the laws in a consistent way, giving Congress a sure means by which it may work the people’s will.”
Perhaps the Court thinks it, too, is supposed to serve the people’s will. It acted here as a supplemental legislature, tidying up after Congress. The Court amplified the law to make it say what the Court clairvoyantly thinks Congress meant to say but did not really say (because the ordinary meaning of “representatives” does not encompass judges). So the Court, although not elected, has acted like a representative institution, thereby practicing what it has now, in a muddled way, preached.
The civil rights lobby expects this ruling to result in elections that will change the racial and ethnic compositions of state judiciaries. But some, perhaps many, states may decide that the process has now become intolerably encumbered with anomalous regulations and will stop electing judges. That would be a gain for good government.
A more judicious Court might have concurred in Scalia’s conclusion, if not all his reasoning, and trusted Congress to speak clearly regarding the Act’s coverage of judicial elections. Congress would have been compelled to confront, in the context of judicial elections, the incongruity of group entitlements in democratic elections. Such subjects are supposed to be vigorously debated and clearly decided in representative institutions, not in courts.
