John Lewis speaking in front of the Supreme Court.

Litigating the Line Between Past and Present

The Supreme Court is about to take up another blockbuster voting rights case. At its core is a struggle over the limits of history.

How past is the past? That quandary, among the definitional puzzles of the human condition, is also the crux of the voting rights battles currently rending statehouses and federal courts around the country. Election law is an intricate tangle of constitutional doctrine, federal statutes and regulations, state laws and procedures, and local practices. It’s among the most complicated of legal specialties. And yet the blockbuster voting rights cases that federal courts in North Carolina, Texas, Wisconsin, and elsewhere have decided in recent years—one of which, Gill v. Whitford, the Supreme Court will hear on October 3—are not, fundamentally, technical legal disputes. Fundamentally they are philosophical fights about the burdens of history.

Consider Shelby County v. Holder, the 2013 Supreme Court decision that partially invalidated the Voting Rights Act. Congressman John Lewis implored the Court to save the Act in a powerful amicus brief. Quoting from Lewis’s memoir, the brief detailed the 1965 march across Selma’s Pettus Bridge, which ultimately impelled the Act’s passage, and in particular, the moment in the course of that march when an Alabama state trooper with a billy club cracked open the left side of the young John Lewis’s skull: “Bleeding badly and barely hanging onto consciousness,” Lewis “tried to stand up from the pavement only to find himself surrounded by women and children weeping, vomiting while ‘men on horses [moved] in all directions, purposely riding over the top of fallen people, bringing the animals’ hooves down on shoulders, stomachs, and legs.’”

Apparently unmoved by this image, a 5-4 majority of the Court joined the opinion of Chief Justice John Roberts, which depicted those men and horses not as still riding in the minds of those who saw them but rather as neatly suspended in a hermetically sealed “before” to which the present world had little connection. “History did not end in 1965,” Roberts insisted. “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

What divided John Lewis from John Roberts in Shelby County was not any disagreement over the basic rule—that Congress must align legislative remedies for racial discrimination with “current conditions”—but rather a disagreement about exactly what qualifies as a “current condition.” For Lewis, the past is a “current condition,” an ambient wind that still swirls the leaves today. “Current” like a stream, running from there to here. Change is not an accomplished feat but an ongoing struggle. For Roberts, the past is not among the relevant data for measuring “current conditions.” “Current” meaning now, in contradistinction to then. Change functions like an acid bath upon the world, leaving it totally and irrevocably resurfaced. We would need some evidence of Alabama today to decide whether we should worry about its legislators’ intentions; stories about the Alabama of yesterday won’t do.

This same divide structured last year’s litigation over North Carolina’s stringent new voter ID and election laws, which challengers framed as Jim Crow all over again: the conspiracy of a predominantly white legislature to disenfranchise black voters. At the trial level, a federal district judge rejected this characterization. The voter ID law was just politics as usual, in the trial judge’s view: not whites oppressing blacks, but Republicans one-upping Democrats, just like Democrats would surely seek to do in turn. The district court acknowledged North Carolina’s “shameful” history of racial oppression—cataloging its Jim Crow literacy tests, Klan violence, and segregation laws—but then dismissed all that evidence as largely irrelevant today. “In North Carolina’s recent history,” the court noted, however improbably, and “certainly for the last quarter century, there is little official discrimination to consider.”

Reversing that sunny verdict, a three-judge panel of the Fourth Circuit Court of Appeals took instead the John Lewis approach. “North Carolina has a long history of race discrimination generally and race-based vote suppression in particular,” wrote appellate judge Diana Gribbon Motz, and the trial court had erred in “ignoring or minimizing” that history. North Carolina’s lawyers promptly petitioned for Supreme Court review, invoking in turn the John Roberts philosophy. “If Shelby County stands for anything,” they wrote, it means that present-day legislators are free of “the sins of Civil Rights-era legislators.” Judge Motz and her colleagues, they complained, seemed to think that “where North Carolina is concerned, it is always 1965. … That rule of decision, however, comes not from Shelby County but from William Faulkner: ‘The past is never dead. It’s not even past.’”

This was a curious thing to write—in my experience, Southerners usually recite that Faulkner chestnut because they agree with it and not because they want the nation’s highest court to declare it wrong. But at least this term, the Supreme Court will not have occasion to weigh in directly on the jurisprudential significance of Requiem for a Nun. In May, the Court declined to hear the North Carolina case, although apparently because of procedural complications and not because it necessarily agreed with the Fourth Circuit. That leaves Gill v. Whitford, the Wisconsin case, as this year’s marquee voting rights case before the nation’s high court. Gill concerns Wisconsin’s most recent redistricting plan, developed in 2011 by the Republican-majority state legislature, and which the lower court invalidated as unconstitutionally contrived to marginalize Democratic voters.

On the surface, Gill might seem disconnected from the questions permeating the Southern cases about the legacy of the Jim Crow past. But in fact the two types of cases are deeply enmeshed. Even if the Court manages to decide Gill without explicitly discussing race (or Faulkner), its decision could have major implications for the rights of minority voters. As election law expert Rick Hasen has explained, questions about partisan gerrymandering and racial injustice are increasingly intertwined both in practice and in doctrine. In part, that’s because one thing that indisputably has changed in the South since 1965 is that the parties have become more polarized along racial lines. For that reason, the NAACP Legal Defense Fund has filed an amicus brief urging the Court to affirm the unconstitutionality of “extreme partisan gerrymandering,” which, “in those parts of our country where race and party are deeply intertwined, may well impact minority representation.”

Gill has also attracted a “historians’ brief”—a type of amicus brief that has become increasingly common in recent years. But the past it returns to is not the 1960s, but the 1780s. “Having rejected and cast off the British notion of ‘virtual representation,’” the brief explains, the revolutionary generation of Americans “demanded a close correspondence between the sovereign people and their legislative assemblies.” Partisan gerrymandering thus violates “the vision of actual representation that was central to the Framers.” Perhaps the Gill historians’ brief, structured around the 18th-century concepts of “actual” and “virtual” representation, will speak to the justices in a way that John Lewis’s memory of getting bludgeoned could not. For it’s a telling paradox about American legal culture that those jurists most eager to invoke the 18th-century past—under the banner of the various modes of “originalism” long in vogue on the legal right—often display less interest in more recent events. Such as the Reconstruction-era debates that forged the Fourteenth Amendment – the provision ostensibly at issue in “equal protection” cases like Gill. Or what happened on the Pettus Bridge almost a century later, within the lifetime of every member of the Supreme Court that decided Shelby County. As children or young adults, the justices may well have watched Bloody Sunday unfold on television, and yet five of them concluded that it must have happened someplace else, in some erstwhile country.