Reflections on Justice Thurgood Marshall and Shelby County v Holder

29 Pages Posted: 11 Nov 2016

See all articles by Wendy B. Scott

Wendy B. Scott

Mississippi College - School of Law

Date Written: September 20, 2016


The visceral reactions to Shelby County by proponents of the Act suggest that the Roberts Court departed from a more favorable judicial interpretation of the legislation. The outcome in Shelby County, however, was not surprising for at least three reasons. First, the Roberts Court has consistently worked to solidify post-racial constitutionalism in the Court’s jurisprudence on race and fundamental rights. Second, the outcome in Shelby County was predictable because the Court rehearsed the arguments against the constitutionality of the Act four years earlier. In Northwest Austin Municipality v. Holder, cited extensively in Shelby County, a Texas utility district had to follow rules of preclearance despite no evidence of activities that gave rise to the need for federal preclearance. The Court decided that the area was not a political subdivision for the purposes of the Voting Rights Act, but declined to rule on the constitutionality of Section 5, citing the need for judicial deference. However, after finding that the Act did not apply, the Court went on to say that “the Act imposes current burdens and must be justified by current needs.” Third, a retrospective view of Supreme Court decisions on the Act confirms the Court’s historic ambivalence towards enforcing the Act starting with the first decision in 1969.

This article takes the retrospective view of the Court’s earlier jurisprudence on the Act through the eyes of Associate Justice Thurgood Marshall to prove the predictability of the Shelby County decision. Part I of this article explores how the Court has differed on two fundamental constitutional questions raised by civil rights statutes: the appropriate balance between state and federal authority and whether Congress or the Court has the authority to determine the constitutional necessity for the Act. These important issues are at the heart of the differing judicial perspectives on the Act. Part II details the Court’s response to the strategies employed by covered jurisdictions to resist congressional authority and push the federalism balance in favor of local control. Many of these opinions were rendered while Justice Marshall sat on the Court and illustrate the historic ambivalence towards the Act. Part III contrast the prevailing norms on the Roberts Court of color-blind equality and post-racialism that undergird Shelby County with Justice Marshall’s approach to achieving racial equality under the Act. While Marshall would have reached a different result, the majority in Shelby County reached a conclusion consistent with earlier decision on racial equality. The article concludes that the choice made to declare Section 4 unconstitutional will lead to the dilution of minority voting strength absent a congressional response to the Court.

Suggested Citation

Scott, Wendy B., Reflections on Justice Thurgood Marshall and Shelby County v Holder (September 20, 2016). Louisiana Law Review, Vol. 76, p. 121-147, 2016; Mississippi College School of Law Research Paper 2016-09. Available at SSRN:

Wendy B. Scott (Contact Author)

Mississippi College - School of Law ( email )

151 East Griffith Street
Jackson, MS 39201
United States

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