Judicial Review of Congressional Power Before and After Shelby County v. Holder

Abstract

This solicited Article sketches the landscape of the litigation surrounding the Voting Rights Act leading up to the Supreme Court's decision in Shelby County v. Holder, in which the Supreme Court found Section 4(b) of the Voting Rights Act unconstitutional, and finds that, in three specific contexts, the Court was generally consistent with its previous practice of employing a relatively searching judicial review of Congress's exercise of its enumerated powers. First, the Court took a minimalist approach to the thorny issue of the appropriate standard of review of Congress's power under the Reconstruction Amendments because it could properly answer the question in this case without addressing the standard of review. Second, the Court's practice of scrutinizing the congressional record in light of a "stringent" and "potent" exercise of congressional power is consistent with its practice in recent congressional power cases generally, and in its history of scrutinizing the Voting Rights Act specifically, a practice the Court will likely continue and that Congress ought to heed. Third, a facial challenge in this case is consistent with its previous practice in Voting Rights Act cases, in addition to its frequent practice in other enumerated power cases. This analysis, however, does expose some of the Court's historic inconsistency with facial challenges more generally and highlights uncertainty in future judicial decisions. Ultimately this Article concludes that the type of review seen in Shelby County is, on the whole, consistent with how the Court has approached review of Congress's exercise of its enumerated powers.

Keywords: federalism, elections, Voting Rights Act, election law, constitutional law, Reconstruction Amendments

JEL Classification: K00, K1, K10