Reviewed by Joshua S. Sellers, Esq., Department of Political Science, The University of Chicago. jss [at] uchicago.edu
In November of last year the Supreme Court revealed its intention to decide the constitutionality of Section 5 of the Voting Rights Act, one of the statute’s central and most controversial provisions. Section 5 applies only to so-called “covered” jurisdictions, deemed so based on a history of past discrimination. It places these jurisdictions – at present, nine entire states and fifty-seven separate counties – under a type of federal receivership, mandating that they obtain “preclearance” from either the Department of Justice or the U.S. District Court for the District of Columbia for any change related to voting qualifications or prerequisites to voting. Section 2, the Act’s other central provision, applies nationwide and forbids any “standard, practice, or procedure . . . which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Section 2 is not at issue in the pending Supreme Court case.
It is against this backdrop that Christina R. Rivers, an Associate Professor of Political Science at DePaul University, offers her inaugural manuscript on the Congressional Black Caucus and its role in influencing minority voting rights in recent decades. In doing so, she joins an extensive array of commentators – academic, professional, and journalistic – with impassioned views on the future of the Act. The Act has long served as an appealing topic for political scientists, particularly quantitative researchers that have used roll call data and other forms of congressional activity as a measure of the substantive impact of minority legislators, most of whom owe their election to the Act’s existence. Legal scholars have been similarly captivated by the Act’s statutory and doctrinal nuances and countless articles and books on these subjects have been produced. Because the body of relevant scholarship is so vast, there is a plentitude of excellent material for scholars to build upon. In turn, however, weaker projects are easily identifiable. Rivers, unfortunately, ultimately fails to present a convincing account of the Caucus’s role in affecting either legislative outcomes or Supreme Court doctrine.
What exactly is Rivers claiming? She asserts at the outset that the Caucus and the Supreme Court are engaged in “an increasingly intense cross fire . . . over the meaning and scope of the [Act]” (p.x). The metaphor suggests that the Caucus and the Court are comparable institutional actors, a claim that is difficult to defend. After all, the Caucus is composed of a mere forty-three members of Congress (as of the 112th [*43] Congress) and has a questionable degree of influence in the legislative arena, to say nothing of its influence in the judicial branch. How then does Rivers attempt to measure the Caucus’s impact? By examining, first, the views asserted by select Caucus members in three of the four periods during which the Act was reauthorized and amended (1975, 1982, and 2006). And second, by examining the amicus briefs submitted by the Caucus in five Supreme Court voting rights cases.
The principal shortcoming of these methodologies is their inability to reveal whether or not the Caucus in fact impacted reauthorization (or amendment) of the Act, or influenced doctrinal development. In assessing the reauthorization periods Rivers primarily relies on statements made by Caucus members during hearings before the Subcommittee on Civil and Constitutional Rights, a subcommittee of the Judiciary Committee. For example, during the 1975 reauthorization Rep. Barbara Jordan (D-TX) and Rep. Andrew Young (D-GA) both advocated for new protections for language minorities and for the extension of Section 5 coverage to Texas, New Mexico, Arizona, and parts of California. The House ultimately approved these amendments by a vote of 346-56. Was the Caucus instrumental in brokering such a decisive vote? Such a conclusion is unlikely, and Rivers, in citing only subcommittee statements by Reps. Jordan and Young in support of the amendments, offers only the weakest of circumstantial evidence.
Similarly, with regard to the 1982 reauthorization – a critical juncture in the history of the Act at which Congress modified the evidentiary standard in Section 2 vote dilution cases – Rivers highlights the advocacy of Rep. John Conyers (D-MI) and Rep. Harold Washington (D-IL), both members of the Judiciary Committee, in support of a then-unprecedented twenty-five year extension of the Act (the Act was extended for an additional twenty-five years in 2006). Yet again, the House vote was not particularly contentious, and the amended bill passed by a vote of 389-24 (contention in the Senate was resolved after both parties agreed that the Act was not to be understood as a guarantee of proportional representation for minority legislators). Given the one-sided nature of the votes in 1975, 1982, and 2006 (when the House vote was 390-33), how much influence can be attributed to the Caucus? Certainly not the dispositive level that Rivers assigns: “That the [Caucus] has been so instrumental in persuading Congress to retain and strengthen the pre-clearance provisions of the [A]ct three times, especially in the face of fierce partisan, regional, and ideological opposition, is remarkable. The [Caucus]’s role in transforming the [Act] since 1982 . . . exceeded most expectations for the [C]aucus” (p.98; emphasis added).
Despite such proclamations Rivers expressly acknowledges that the Caucus was simply one actor among many in the reauthorization periods. She notes that during the 1982 reauthorization Reps. Conyers and Washington “relied heavily on the support of other minority members of Congress and House Democrats as well as the continued support of Pete Rodino (D-NJ), chair of the House Judiciary Committee, and Don Edwards (D-CA), chair of the House Subcommittee on Civil and [*44] Constitutional Rights” (p.78). She additionally mentions the important role played by the National Urban League, the NAACP, and the AFL-CIO, an observation that is corroborated by other analyses of the 1982 extension (Pinderhughes 1995). The equivocation leaves the reader with a confused sense of just how relevant the Caucus was to the three reauthorizations under review.
Rivers’s conclusions regarding the Caucus’s amicus filings in five Supreme Court voting rights cases are even more questionable. The cases she examines are Rogers v. Lodge (1982), Miller v. Johnson (1995), United States v. Hays (1995), Shaw v. Hunt (1996), and Northwest Austin Municipal Utility District Number 1 v. Holder (2009). These cases were chosen because they each “test the scope and intent of the [Act] in the context of the Equal Protection Clause of the Fourteenth Amendment” (p.106). To begin, her claims regarding the Caucus’s role are tepid. She first states an intention to “consider how the Court and the [C]aucus have influenced each other” (p.102). Yet two sentences later she notes that the Caucus’s influence may occur only “indirectly, by insisting that a race-conscious approach to redistricting cases and minority voting rights falls squarely within Congress’s intent for both the Fourteenth Amendment and the [Act]” (p.103). Three pages later it is the Caucus’s discursive role that is emphasized: “What matters most has less to do with who wins in a particular minority voting rights debate and more with the [Caucus]’s role in provoking deeper and more nuanced considerations of the role of race in constitutional and statutory laws in such debates” (p.106). The inconsistency is frustrating.
There is also the issue of whether amicus briefs impact Supreme Court decision-making at all. Conventional wisdom holds that they have very little influence, save those submitted by the United States Solicitor General. There are of course exceptions, but in light of the multitude of information presented to the Court in a given case (litigant briefs, amicus briefs, law review articles, the complete record from the lower courts, oral arguments), there is little reason to believe that an amicus brief submitted by the Caucus will receive special solicitude. Rivers even concedes that “the Court never directly mentions the [Caucus]’s amicus briefs” (p.127). As in her discussion of the Caucus’s role in the reauthorizations, the strongest evidence Rivers presents for the argument that the Caucus’s amicus briefs had an impact is circumstantial.
She notes that Justice Ruth Bader Ginsburg’s dissent in Miller v. Johnson (1995), a racial gerrymandering case from Georgia, emphasized the original intent behind the ratification of the Fourteenth Amendment, an argument contained in the Caucus’s amicus brief as well. Yet no definitive connection between the brief and the drafting of Justice Ginsburg’s dissent is presented. None of this prevents Rivers from concluding that “the [Caucus]’s endorsement of race-based districting in its amicus briefs may have goaded the Court into checking congressional power by interpreting the law in a way that undermines Congress’s intent” (p.103). This statement ascribes a level of influence to the Caucus that is plainly unrealistic. A major doctrinal shift did undoubtedly occur between 1986 and 1993, when Thornburg v. Gingles, a [*45] seminal Supreme Court voting rights case that fostered the creation of majority-minority districts, and Shaw v. Reno, a much-maligned Supreme Court voting rights case that placed many majority-minority districts in constitutional jeopardy, were respectively decided. However, that shift had more to do with the retirement of Chief Justice Burger (1986), the promotion of Justice Rehnquist as his replacement, and the retirements of Justices Powell (1987) and Marshall (1991), than anything done by the Caucus (Keck 2004).
The discordance between evidence and interpretation begs the question of why Rivers chose to focus on the Caucus in the first place. The answer might involve her desire to harmonize the Caucus’s efforts with those of nineteenth-century black political leaders. She states that one of her goals “is to demonstrate that the [Caucus]’s efforts are best understood not solely in the context of contemporary voting rights issues but as contemporary expressions of the race-conscious tradition of black political thought dating back to at least 1830” (pp.5-6). She thus outlines the ideologies of several nineteenth-century black leaders, including the radical abolitionist David Walker, the minister and abolitionist Henry Highland Garnet, the abolitionist Martin Delany, and the author, orator and abolitionist Frederick Douglass. The views of these men are loosely linked with those of black elected officials in the Reconstruction Congresses, which are in turn loosely linked with the views of the Caucus. Through her recounting of these perspectives Rivers convincingly asserts that contemporary arguments in support of “color-blindness,” the notion that race-based remedial measures are indistinguishable (constitutionally and morally) from racial discrimination, are anachronistic.
I applaud the effort to excavate the work of nineteenth-century black figures and agree with Rivers that more work of this nature is necessary. Further, there is great value in reminding readers that the Fourteenth Amendment was originally conceived as a guarantee of freedom and equality for newly freed slaves, a position openly defended by Reconstruction-era black officeholders. But the simple identification of race-conscious rhetoric on the part on various black figures across the past one-hundred and eighty years does not resolve debates over what the Act presently requires, and does not constitute a satisfying intellectual history. Rivers notes that “a cursory examination of the rhetoric of black leaders from the antebellum era to the [Caucus] indicates that color blindness has never been their sole or ultimate goal. The goal has been, and continues to be, racial equality, with color blindness but one means toward that end” (p.150). I don’t disagree, though I am hard pressed to think of a black leader in history who was opposed to racial equality. The relevant questions have always been those of means (see, e.g., Gooding-Williams 2009). It is no easy task to unite disparate thinkers or political actors across generations, and Rivers should be credited for her ambition. However, the broad understanding of race-consciousness she adopts is essentially inchoate.
Rivers concludes by declaring that if “early black political thought were considered by more legislators and [*46] decision makers as a key political context variable it might help ease the conflicts over how best to achieve racial equality. Black leaders since the early nineteenth century have consistently subscribed to the core American tenets of freedom, equality, and democracy even as they have endorsed them in a race- and group-conscious manner” (p.166). In the near future we will learn if the current Supreme Court’s understandings of freedom, equality, and democracy warrant preservation of a central provision of the most effective civil rights statute in U.S. history.
Gooding-Williams, Robert. 2009. In the Shadow of Du Bois: Afro-Modern Political Thought in America. Cambridge, MA: Harvard University Press.
Keck, Thomas. 2004. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: The University of Chicago Press.
Pinderhughes, Dianne M. 1995. “Black Interest Groups and the 1982 Extension of the Voting Rights Act,” in Blacks and the American Political System. Huey L. Perry and Wayne Parent eds. University Press of Florida.
Miller v. Johnson, 515 U.S. 900 (1995).
Northwest Austin Municipal Utility District Number 1 v. Holder, 557 U.S. 193 (2009).
Rogers v. Lodge, 458 U.S. 613 (1982).
Shaw v. Hunt, 517 U.S. 899 (1996).
Shaw v. Reno, 509 U.S. 630 (1993).
Thornburg v. Gingles, 478 U.S. 30 (1986).
United States v. Hays, 515 U.S. 737 (1995).
Copyright 2013 by the author, Joshua S. Sellers