Posted June 27, 2006 by J. Gerald Hebert

Reading Between the Lines of Randall v. Sorrell

Yesterday’s ruling in Randall v. Sorrell marked the first major election law decision from the Roberts Court.  The multiple opinions from the Justices have caused a mad scramble in the election law community to read the tea leaves.  With so many opinions, there are many lines to read between.

Some have cited the Chief Justice’s decision to sign on to Justice Breyer’s opinion as in keeping with Roberts’ statements during his confirmation hearings to the effect that the precedents of the Court warranted great respect. 

Others are speculating that the decision against Vermont’s contribution and expenditure limits is just a small first step for a Court that will continuing chipping away at the precedents that have held sway in campaign finance law for decades. 

I had several occasions during my stint at DOJ to interact with John Roberts and to read his memos applying precedent (e.g., White v. Regester, Thornburg v. Gingles) to voting rights cases that were then pending before the Supreme Court.  There can be little doubt that he is a serious scholar of the law and a brilliant advocate.  More importantly to those who watch the direction of the Court, I believe he appreciates his place in history.  John Roberts is not a small-minded individual who lacks vision, and I think his goal of trying to forge consensus on the Court is heart-felt.  I believe he meant what he said when he delivered the commencement address at Georgetown  University  Law  Center last month: "The broader the agreement among the justices, the more likely it is that the decision is on the narrowest possible ground." He added: "If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide more."

Not just for the Voting Rights Act (VRA), but in so many other areas of the law, I remain hopeful he will remain faithful to precedents and not ignore them or do legal somersaults to avoid their application, as some Justices have done.  John Roberts will likely be on the Court for decades to come.  Will he want to be remembered as someone who ignored well-established legal precedents to achieve a certain agenda, or will he seek to become a true consensus builder uniting the Court and perhaps go on to become one of the greatest Chief Justice’s?  The answer, of course, will depend on his conduct day in and day out, far out of the public eye.  

Yesterday’s decision shed even less light on the role of Justice Alito in the election law decisions of the Roberts Court.  And while I am not encouraged by Justice Alito’s decision to go it alone and not to join Justice Breyer’s decision, at least he did not join with Justices Scalia and Thomas in their renewed call to throw out the Buckley precedent.  So I am not about to give up on Justice Alito’s vote in support of the Voting Rights Act or other upcoming election law cases designed to test the new Court. 

Over the years, the Court has chipped away at the Voting Rights Act, particularly Section 5, time and again (e.g., Presley, Bossier I, Bossier II, and some [but not me] would include GA v. Ashcroft).  To be sure, striking down Section 5 would have been seen as “blockbuster and controversial”.  In my discussions with attorneys in the voting rights bar, I believe the Court’s tendency to move slowly in matters such as these, charged as they are with strong emotions, is what leads many to believe the Court will not declare the VRA unconstitutional.  Except for Roe v. Wade, I can’t think of another case that could come before the Court with as much passion and emotion.

As we all try and read the tea leaves in future decisions, it will be interesting to see if the Chief Justice is able to achieve the goals he spoke about when he addressed Georgetown Law School’s graduating class last month, his goal of following a more Frankfurter-like approach to the law, having the Court focus on discrete issues, and avoiding rulings that are so broad that they presuppose answers to questions (and future cases) that are not even before the Court.  I think the upcoming decision in the Texas case will also enlighten us about the Chief Justice’s stance on the thorny issue of race and politics, and its implications for the constitutionality of the Voting Rights Act.  In a Los Angeles Times op-ed, University of Chicago Professor Cass Sunstein, offered his observations on Roberts’ Georgetown speech:

“In a period in which the court must answer many novel questions, there is a lot to be said for minimalism — not least because it tries to avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views.

Indeed, narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where agreement is necessary, while also making agreement unnecessary where agreement is not possible.”

It may be too early in the Chief Justice’s career on the Court to state with any precision what it means that he signed on to Justice Breyer’s decision in the VT case, and I am even more doubtful we can use that vote to predict with any degree of certainty how he will vote on the constitutionality of the VRA when it comes before the Court in the next year or so. But I do think his decision yesterday, and his unanimous decision in the WRTL case earlier this year, are encouraging signs that he is not on an ideological mission to advance a particular agenda in the field of campaign finance law. 

At the Georgetown graduation, John Roberts said that he sees his role as Chief Justice as one that steer the Court to reach decisions that will “not embarrass the future too much.”  That portends well for the future of the Voting Rights Act, as well as those interested in upholding the laws of campaign finance regulation.