Douthat views yesterday’s ruling on the Voting Rights Act as “updating a successful law to reflect contemporary realities, which under our system is supposed to be the role of the legislature rather than the courts.”
[A] Republican-controlled Congress showed absolutely no interest in fulfilling that obligation when the V.R.A. was actually up for legislative review in 2006. On one level, that year’s 98-0 Senate vote, which extended the act by another quarter century, makes the case for judicial deference on the issue even stronger, since it suggests that a broad democratic consensus exists in support of the existing provisions. On another level, though, it’s an example of how Congress can effectively invite the judicial usurpation of politics, because that’s what many of the Republicans who voted to reauthorize the V.R.A. in 2006 were kind-of sort-of doing: They favored revisions to the act, but saw no political percentage in picking a fight on such a highly-charged, historically-freighted issue when it could be litigated through the courts at a lower political cost instead. So the Court’s intervention here isn’t just an example of judicial activism; it’s an example of judicial activism in a sphere where many members of Congress clearly preferred such activism to the exercise of their own constitutional prerogatives.
His larger point:
In some of these cases, Congress is ceding power out of incapacity, but just as often it’s ceding it by choice — deferring to the imperial presidency, welcoming the encroachments of the administrative state, looking to the juristocracy for refuge and support on difficult and polarizing issues. So while it’s worth criticizing judges for their immodesty and our presidents for their power grabs, it’s also important to recognize the role played by legislators whose abdications have enabled both: Politics abhors a vacuum, and our elected representatives are often far to happy to have someone else step in and fill it …
The Dish 