The Absent Opposition

Diverse Panel Lacks Diversity in Opinion

Note: This Article originally Appeared in the Seton Hall Law Cross Examiner, a student-run newspaper.

In February, Seton Hall Law’s Black Law Students Association hosted an enlightening and important discussion panel focused on last year’s Supreme Court decision regarding the Voting Rights Act in Shelby County, Alabama v. Holder. The panel was comprised of influential minds in constitutional law and civil rights. Law students were engaged throughout the event as the panel discussed the case, its ramifications, and the future of voting rights in this country. This was an informative discussion about serious matters from serious people. There was only one thing missing: dissent.

The panel, for the large part, spoke with one voice. Despite the fact that the decision in the case was a narrow 5-4 majority, all four contributors vigorously supported the dissenting opinion. Chief Justice Roberts’ decision was analyzed and criticized, with each panelist expressing her concern over what was next for minority voters, specifically in southern states whose laws were held in the administrative teeth of the Act for five decades. The Voting Rights Act was an “extraordinary measure for extraordinary times.” Minority voting rights had been ravaged in our country at the hands of bad actors in many individual states, and it was time for the federal government to stop them when the act was passed in 1965. The panelists’ concerns, from this standpoint, were not unfounded.

But, is it still necessary to place such power in the hands of the Federal government today? This is the central question of the case which split right-left political lines. Chief Justice Roberts’ opinion placed the import on the function of federalism and state equality in our curious Constitutional Republic. The dissent, written by Justice Ginsburg, concentrates on individuals’ voting rights and the Court’s necessary deference to the Congressional assessment of voting conditions in the states. Her ultimate fear is that this holding may unintentionally invite a revival of discriminatory voter laws reminiscent of the Bull Connor South.

Part of the significance of Shelby County is the fact that the opposing justices are separately addressing the different issues of federalism and voting rights, two of the great pillars of the American Experiment. The two concepts are not mutually exclusive though, as James Madison once wrote that the design of federalism was to further enhance protection for individual rights: “The power surrendered by the people is divided between two distinct governments… Here a double security arises to the rights of the people.” The fact that these two functions are distinguished as opposing points in this decision is indicative of the states’ egregious abuse of power in the tumultuous times precipitating the Voting Rights Act.

It is because these two great jurists so strongly ideologically oppose the other in this near balanced opinion that the absence of a single voice in the discussion supporting the majority was so conspicuous. The argument can be rehashed over the wisdom of the Courts’ decision, but there is a deeper concern: in a law school where the primary objective of faculty and student organizations should be the preparation of well-meaning and well-informed attorneys, current Supreme Court issues- particularly 5/4 decisions less than 12 months old- cannot be presented in a one-sided fashion. Our students will graduate law school entering an American system where free markets reign supreme, both economically and politically. The Marketplace of Ideas is where opinions shaped in school will be tested and challenged. When we begin to collectively shield ourselves as an institution from legitimate perspectives dismissed as objectionable or even oppressive, we not only deny ourselves the chance to learn about, confront, and deconstruct those positions, but also the ability to do so in a way to effect change. This balance of aspirations is currently realized in the teaching approach of my Constitutional Law professor, even though he is a former advisor to the current head of the Democratic Party. The pedagogical objective of a discussion panel should be no different.

I cannot affirmatively say (although, as not so subtly written here, I could argue) whether the Shelby decision was constitutionally correct. A case concerning the fundamental values of our republic is one that invokes deep emotions about the past, present, and future of the United States. But a professional discussion about the case, which is now governing law, would better serve inchoate law students with the presence of a panelist advocating as the sole dissenter in the room- especially when that dissenting opinion is shared by five justices of the Supreme Court.

– John P. Burns