We should expect more from Congress, but let us not expect too much: that is a recipe for disillusionment.
In 2006, Congress readopted the law by overwhelming and bipartisan majorities, after due diligence and 15,000 pages of evidence showed that it was still needed. A divided Court struck down a key provision of the statute in only 24 pages.
When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.
Justice Ruth Bader Ginsburg in her dissent on today’s ruling about the Voting Rights Act.
For more on Congress’s power, read Pam Karlan’s “The Constitution Without the Court”
The political branches can use their powers, under both the enforcement clauses of the Reconstruction amendments and the provisions of the original Constitution, to provide a fuller vindication of constitutional values of liberty, equality, and dignity than courts can achieve acting alone.
For example, ten years after the Supreme Court’s decision in Brown v. Education (1954), less than 3 percent of black schoolchildren in the South had even a single white schoolmate. And nearly a century after the Fifteenth Amendment prohibited denial or abridgement of the right to vote on account of race—and after decades of litigation in which the Supreme Court had condemned violation of the amendment—only 6 percent of black citizens in Mississippi and less than 20 percent of black citizens in Alabama were registered to vote. But once Congress authorized the executive branch to cut off federal funds to school districts that discriminated, real desegregation began in earnest. And when Congress provided authority for the appointment of federal voting registrars, within five years those officials had enrolled nearly as many black voters in the South as had managed to register in the entire prior century.
The importance of the political branches in realizing fully the promise of the Constitution—to “establish justice, … promote the general welfare, and secure the blessings of liberty to ourselves and our posterity”—stems from the nature of the document. With the exception of the Thirteenth Amendment’s ban on slavery, the Constitution’s prohibitions and commands operate directly upon the government alone.