[EL] Faux textualism in Brnovich

[Nicholas Stephanopoulos]

I wrote this column
<https://www.washingtonpost.com/opinions/2021/07/01/supreme-court-alito-voting-rights-act/>
for
the Washington Post objecting to the extra-textual constraints the Court
imposed on Section 2. I'll have more to say about these constraints on ELB.
The column concludes as follows:

It isn’t textualism to follow statutory language only when doing so is
congenial to one’s ideological allies. It isn’t textualism to flout
statutory language by creating out of thin air extra-textual checks on a
disfavored claim. And it isn’t textualism to interpret the Voting Rights
Act as one wishes it had been written, not as Congress actually wrote it.
To return to Alito’s metaphor, this is what a judicial pirate ship looks
like. It flies textualist colors while plundering one of the key statutory
achievements of American democracy.

Still, the extent of the pillage shouldn’t be overstated. Plaintiffs will
still be able to prevail in a number of Section 2 cases. Above all, these
will be challenges to novel or unusual voting restrictions. By definition,
these laws weren’t prevalent in 1982. Because of their newness or
distinctiveness, their impositions are also likely to exceed the standard
burdens of voting in courts’ eyes.

Additionally, nothing in today’s decision undermines Congress’s authority
to correct the court’s blunder. There’s not a word suggesting that a more
aggressive statutory test — for example, one invalidating any practice that
causes a significant racial disparity unless it’s necessary to achieve a
substantial state interest — would be constitutionally problematic.
Fortuitously, Congress is considering the John Lewis Voting Rights
Advancement Act
<https://www.congress.gov/bill/116th-congress/senate-bill/4263>, which
would revive a different portion of the law. That bill is the ideal vehicle
to fix this problem, too. By enacting some new statutory language, Congress
could bring an end to the court’s extra-textual adventurism.

-- 
Nicholas O. Stephanopoulos
Professor of Law
Harvard Law School
nstephanopoulos at law.harvard.edu
(617) 998-1753
https://hls.harvard.edu/faculty/directory/11787/Stephanopoulos
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