Editorial reaction to Voting Rights Act cases fall out along the usual lines.  The Bartlett case is no different.  Where the editorial line is generally "progressive", judgment has been critical of a decision seen to weaken a critically important law into eventual oblivion.  More "conservative" publications, the Wall Street Journal being a good example, are sure that the Court acted wisely and that the statute has outlasted its useful mission. On the one side:  the certainty that the courts must keep the law in fighting trim, in a world where race still matters and voting rights are fragile.  On the other:  the same certainty that times have changed but that the Voting Rights Act supporters won’t change with them.  Each side is quite sure, just as the Justices lining up on each side of the issue in Bartlett seem quite sure of their positions.

     Commentators yesterday tried to bring perspective to the matter.  Rick Pildes, whose work is liberally cited by both sides in Bartlett, tells the New York Times that all certainty is a mirage.  The world we inhabit now, he says, is not much like the one of years past, in which African-Americans were shut out of public office, and this is inevitably affecting the legal debate.  Nate Persily wonders how impact the opinion will really have: not much, he suggests.

     Of all the Justice’s opinions, a very short one but of considerable interest, is Justice Ginsburg’s.  She writes that "Today’s decision returns the ball to Congress’ court."  She suggests that Congress can simply provide that section 2 may require the drawing of district lines to accommodate "crossover potential", where the racial minority’s share of the voting age population is less than 50 per cent.  In answer to this, Rick Hasen raises the concern that Congress might provoke the courts, putting the law in still more danger.    

     Whatever one thinks of such advice, delivered directly by a Justice to the Congress, one question it raises is:  would Congress accept the challenge and return the volley, now that the "ball is in its court"? 

     Congress, when faced with re-authorization, did reverse court rulings, in Georgia v. Ashcroft (539 U.S. 461 (2003)) and Bossier Parish II (528 U.S. 320 (2000)), but this was to conservative effect, to leave things as they were. And Congress was forced to act, or to conspicuous inaction, by the looming expiration of section 5.  To act now, in response to a decision like Bartlett, would require a very different exertion of will, of self-assertion.

     Is it likely that Congress (even allowing for the great pressures it faces on the economy) would find this will?  Weakening this will would be the political complexity of voting rights issues at the present time, rarely acknowledged in the post-decision, highly oversimplified coverage.  Members who readily supported re-authorization may be less confident of how to address issues like the one presented in Bartlett.  The dissent, ably represented by Justice Souter, makes its case powerfully and effectively, but it is not a simple case and it will not necessarily translate successfully into political debate or legislative action.

     As in confronting the Court’s decision in Ashcroft, the question for the legislators, most of them practical politicians, would be whether to maintain more space for politics and to limit the role of statutory mandate, in the belief that this much has changed:  that there is more such space.  Congress chose not, in overturning Ashcroft, to take too much of a chance on just politics. 

     In the context of the re-authorization, this was an easier decision than it would be here, where Congress would have to affirmatively take up the question and decide it.  It would not be opting for the status quo and waiting for the future to show itself, as it did with the reauthorization.  It would have to make more demanding judgments about the present and future course of racial politics—and about how and by whom that course would be directed. 

     For all the post-Bartlett editorial and other punditocratic certainties, Congress might find this all too much:  it would not be sure what it should do.  For the time being, it might elect to concede the match to the slender majority on the Court. 

Bob Bauer