Bonus 54: Making Rights Harder to Enforce

The Supreme Court may eventually reverse the Eighth Circuit's holding that the central provision of the Voting Rights Act can't be privately enforced, but it's directly responsible for how we got here

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of the bonus content is the personalization of the latter. Unlike last year, when I used Thanksgiving to reflect upon the Thanksgiving traditions my family celebrated growing up (and my grandmother’s central role therein), I thought I’d stick to something more substantive this year—prompted by the Eighth Circuit’s divided ruling on Monday that section 2 of the Voting Rights Act (the central substantive provision of that landmark civil rights law) can’t be enforced by private plaintiffs. In a nutshell, Judge Stras’s majority opinion adopts a remarkably wooden reading of section 2 in holding that it fails to create a “private cause of action.” Thus, unless there’s some other way for private parties to enforce section 2 (more on that below), then enforcement of the Voting Rights Act’s central anti-discrimination provision would be left exclusively to the federal government. (To take just one of countless examples, the lawsuits that successfully led to the Supreme Court’s June ruling requiring Alabama to draw a second majority-minority district couldn’t have been brought under the Eighth Circuit’s logic.)

I agree with Rick Hasen that it’s “hard to overstate how important and detrimental this decision would be if allowed to stand.” It’s not just that the overwhelming majority of section 2 suits are brought by private plaintiffs; it’s that one of the justifications the Supreme Court relied upon a decade ago in Shelby County v. Holder, in which a 5-4 majority got rid of the VRA’s “preclearance” regime, was that suits to enforce section 2 would remain available. But I wanted to focus today’s post not on the “heads we win, tails you lose” quality of this judicial Calvinball, but on trying to explain how we even got to this point in the first place—in which a court of appeals could hold, with a straight face, that the VRA does not authorize private enforcement.

The blame, it turns out, rests almost exclusively with the Supreme Court—and a pair of decisions in the early 2000s that don’t get nearly enough attention. To skip to the punchline, after adopting a defensible (if not self-evident) rule that Congress needs to be clear when it means to authorize private enforcement of federal rights, the Court took the additional step of applying that new test to statutes enacted before the Court’s newfound approach—holding past Congresses to a standard it could never have known it had to meet.

The Thomas F. Eagleton U.S. Courthouse in St. Louis, Missouri—home of the Eighth Circuit (and the U.S. District Court for the Eastern District of Missouri), and the largest single courthouse in the United States

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.