The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court

Luis E. Fuentes-Rohwer, The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court, 5 Duke J. Const. L. & Pub. Pol’y 125 (2010).

Abstract:  This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences – namely, their personal disdain for the use of race in public life – will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court’s treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency.

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