The Roberts Court’s hostility to the Voting Rights Act is well documented. But there is a different lesson to draw as we mark the 61st anniversary of the landmark civil rights law this week. Our governing institutions, including the Supreme Court, must not become so powerful that they undermine core democratic principles.
The Voting Rights Act’s passage and continued renewal sought to deliver on the promise of a democracy where everyone has a say in the future of our country without the scourge of racial discrimination in our voting system. Disturbingly, a faction of the Roberts Court’s lifetime-appointed justices have worked to demolish the law and override the judgments of near unanimous bipartisan majorities of multiple Congresses on questions that are fundamental to representative government. It is a prime example of how the Court has aggrandized its role and why it must be reformed.
After Americans organized, marched, and bled for access to the ballot box, President Lyndon B. Johnson signed the Voting Rights Act into law on August 6, 1965. Over the decades, Congress has reauthorized and amended it five times, most recently in 2006, when huge bipartisan majorities passed the reauthorization — the House 390–33 and the Senate 98–0. President George W. Bush signed it into law.
Yet that record wasn’t enough for the Roberts Court seven years later in Shelby County v. Holder. Despite acknowledging “voting discrimination still exists; no one doubts that,” five justices gutted the law’s requirement that states and localities with an extensive history of discrimination had to get federal approval before instituting changes to voting laws. According to the Court, Congress used outdated information to renew the law.
The decision revealed how the Court was all too willing to substitute its judgment for the overwhelming consensus of Congress, which had exhaustively studied the issue when it chose to reauthorize the law. Lawmakers held more than 20 hearings where they heard from more than 90 witnesses and gathered more than 15,000 pages of evidence demonstrating the persistence of racial discrimination in voting.
The Court followed up several years later in Brnovich v. Democratic National Committee and made it harder for litigants to challenge discriminatory voting laws. Last term, in Louisiana v. Callais, the Court further dismantled what was left of the law, eviscerating Section 2 of the Voting Rights Act, which had long ensured voters of color had an equal opportunity to elect representatives of their choice.
The decisions were not just an affront to voting rights — they also laid bare just how much power justices wield over the laws that protect our democracy and the shape of elections themselves. By making it harder for people to make their voices heard, the Court is wrongly warping the political process, in turn making the government even less responsive to popular calls for change.
Part of the answer to this challenge lies in changing the structure of the Court itself. The Constitution protects judicial independence in part through life tenure for justices. Still, the framers might not have expected that advances in modern medicine would make 30-year tenures a strong possibility. For most of the Court’s history, justices served for 16 years on average. Now the average (since 1993) has surpassed 28 years — or seven presidential terms. As such, a single Supreme Court justice can shape the law for generations without any measure of meaningful democratic accountability.
Judicial independence is about the judicial branch, not about empowering individual justices. It does not require the same nine people to serve for three decades or more. Instead of allowing justices to serve for as long as they wish, Supreme Court term limits of 18 years with a regular schedule of new appointments would help bring an appropriate degree of balance and accountability back to our constitutional order. The goal is not partisan, but to tighten the democratic link between the Court and the public and to ensure that a small group of people do not maintain control of the judicial branch for decades.
The leading proposal, which Congress could adopt by statute, would divide a justice’s service into phases: 18 years of active service followed by senior status with modified duties, like deciding cases on the circuit courts of appeals or assisting with the administration of the courts. Importantly, senior justices would retain their offices and salaries consistent with the Constitution’s good behavior clause. This is one of the reasons that more than 50 constitutional scholars and retired federal and state judges have affirmed the constitutionality of this approach. It would also mean that each president would have two, and only two, Supreme Court appointments per term, ensuring that each president could leave an equal imprint on the bench.
