The Supreme Court decided a Voting Rights Act case yesterday, and it was received in the general press, when noticed at all, with a yawn.  The question in the case was whether VRA’s pre-clearance requirements were triggered by a decision of the Alabama Supreme Court, and the Court concluded, on a complicated set of facts, that the decision produced no change in voting rules within the meaning of the federal law.

     The Associated Press reported with extreme brevity that Justice Ginsburg, who authored the majority opinion, pronounced the outcome one of narrow application, and its story ended there.  A quick search of today's online edition of the New York Times produced nothing under “Riley v. Kennedy.”  

     Two interesting views of the case have circulated through the blogs, one before and the other after the decision.  The first, offered by Rick Hills holds that the case represents the “trivialization” of VRA litigation; the other, presented by Rick Pildes, post-decision, suggests that the case, while technical, shows a trend in the Court’s view of section 5.  Hills could detect nothing of true importance in the case: no hint of any major engagement over discriminatory practices.  Pildes approaches the case from the perspective of how the Court today, as distinguished from prior Courts in different times, reveals, through its disposition of “technical”—or as Hills would have it, “trivial” issues—the changed direction of its outlook on section 5 preclearance:  a change toward “skepticism about whether parts of the VRA  [such as section 5] remain as necessary and justifiable in the circumstances of politics today as they did in the first generation of the VRA's existence.”

     Pildes rightly directs attention to the poignant significance of Justice Stevens’ dissent, in which Justice Souter joined.  Stevens concedes that “voting practices in Alabama today are vastly different from those that prevailed prior to the enactment of the Voting Rights Act," and that “it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were.”  Riley v. Kennedy, slip op., Stevens dissent at 1.

     This, remarkably, is the language of the dissenting opinion; this is how it opens.  And further on, reviewing the historic complicity of the Alabama Supreme Court shameful discriminatory practices, Stevens borrows from the past to give life to his argument that, in the present, the Court should adhere strictly to the precedents and give the VRA  a “generous” interpretation (id. at. 1, 9-13), particularly in the wake of recent Congressional re-authorization.

     Seven Justices chose otherwise.  So both Hills and Pildes have their points.  The case was technical, and the stakes not easily discerned; but the Court, in deciding the case as it did, has left the impression that Riley v. Kennedy may be greater than the sum of its litigated and adjudicated parts.

Bob Bauer