The district's lawyer acknowledged that if the court supported the district's right to seek a bailout, then the court "need not" settle the constitutional point. So John Roberts and seven colleagues said there was no point "rushing" to decide whether events have rendered Section 5 unconstitutional. Doing so would have infuriated persons attached to that provision not as a still-needed protection but as a symbol of heroic days long gone.

Roberts acknowledged that in some states covered by the preclearance requirements, "blacks now register and vote at higher rates than whites." He noted that Section 5, which "imposes current burdens and must be justified by current needs," entails substantial "federalism costs." And he quoted Alexander Hamilton on the court's duty to resist "legislative encroachments."

But because declaring an act of Congress unconstitutional is the court's "gravest and most delicate duty" (Oliver Wendell Holmes), and because the court has hitherto noted that Congress, too, takes an oath to uphold the Constitution, Roberts held that the court normally should (in words from a 1984 ruling) "not decide a constitutional question if there is some other ground upon which to dispose of the case." So, said Roberts, it was sufficient to hold that the Texas district could have recourse to Section 5's bailout provision.

Thomas, however, believes that the "doctrine of constitutional avoidance" was inappropriate in this case. The fact that the court has declared the Texas district eligible to seek a bailout neither guarantees relief from a burden that has lost its rationale nor addresses Section 5's now patent unconstitutionality. Allowing its continuance in the absence of the emergency that long ago justified it seriously damages the nation's constitutional structure: "State autonomy with respect to the machinery of self-government defines the states as sovereign entities rather than mere provincial outposts subject to every dictate of a central governing authority."

The 15th Amendment guarantees the right to vote and grants Congress the power to enforce the right with "appropriate" legislation. Thomas argued that Section 5 is now inappropriate: "Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative meas-ure that has already served its purpose."

Thomas, refusing deference to a branch of government that has not done its duty, said: "The burden remains with Congress to prove that the extreme circumstances warranting Section 5's enactment persist today." His position constitutes the sort of judicial activism on which constitutional government depends—a determination to enforce institutional boundaries on the political branches that have a perennial itch to overstep them.

© 2009