When It's Right Not to Right a Wrong

GEORGE F. WILL

February 03, 1992|By GEORGE F. WILL

WASHINGTON — Here are words that some political extremists tried desperately to keep from ever being published in a Supreme Court ruling:

''Kennedy, J., delivered the opinion of the court, in which Rehnquist, C.J., and O'Connor, Scalia, Souter and Thomas, JJ., joined.''

Three months after the failure of the smearing of Clarence Thomas, Mr. Justice Thomas has participated in a case that perfectly demonstrates why he deserved to be confirmed. The case involved an apparent injustice -- an act of racial discrimination. But the court had the courage to let the injustice stand rather than resort to judicial overreaching, the courage to be judicial and self-denying rather than political and self-indulgent.

Five years ago, for the first time in modern times, some black men were elected to the county commissions of Etowah and Russell counties in Alabama. In one county the white majority on the commission promptly stripped individual commissioners of control over road-repair budgets in their respective districts and put all repair money in a common fund controlled by the six-person commission. In the other county the commission majority abolished the members' individual road districts and transferred repair authority to an engineer selected by majority vote of the commissioners.

The black officials brought suit, charging that the reallocations of authority violated Section 5 of the 1965 Voting Rights Act. That section says that jurisdictions covered by the act must seek federal permission (''preclearance'') before implementing any new ''voting qualification, or prerequisite to voting, or standard, practice, or procedure with respect to voting.''

Justice Kennedy's opinion did not comment on what the two counties have done, although it did note that ''nothing we say implies that the conduct at issue in these cases is not actionable under a different remedial scheme.'' However, the court said, Section 5 could not be a remedy because it addresses, explicitly and only, changes ''with respect to voting'' rather than, say, with respect to governance.

The court noted that it has hitherto construed Section 5 expansively. It has held that preclearance is required for changes in manners of voting, in requirements and qualifications for candidates, in the composition of the electorate for an office, or involving the creation or abolition of an elective office.

But the plaintiffs (backed by President Bush's Justice Department) here urged the court to leap into a vast and thorny thicket. They wanted the court to rule, in effect, that it is impermissible for any covered jurisdiction, state or local, to adopt without federal permission any change that in any way dilutes the value of the votes of minorities.

The court noted that innumerable state and local enactments that have nothing to do with voting affect the power of elected officials. Every budget does; so does any modification of committee systems. Imagine every jurisdiction having to seek preclearance for every such action. ''Congress,'' the court said, ''did not mean to subject such routine matters of governance to federal supervision.''

Justice Stevens, joined in dissent by Justices White and Blackmun, chafed under the idea that the court could not by fiat rectify what seems to have been nasty acts whereby newly elected black commissioners were unable to exercise decision-making authority traditionally associated with their offices. Mr. Stevens noted that lower federal courts and the Justice Department have previously used Section 5 to cover transfers of decision-making power that have ''a potentially discriminatory impact on black voters.'' What, he wondered, of a reallocation of governmental authority that reduced an official to a mere figurehead -- would that not be tantamount to abolishing an office, and would that not implicate Section 5?

To strike down all stratagems and subterfuges by which minorities can be burdened in civic life, Justice Stevens would give even broader sweep to Section 5's definition of voting as encompassing ''all actions necessary to make a vote effective.'' But there are two reasons not to make courts into monitors of voting ''effectiveness.''

One is that courts would drown in litigation challenging minute acts of governance and requiring courts to weigh and adjust the ''effectiveness'' of the votes of minorities and non-minorities.

The second and more important reason is that the Voting Rights Act is simply not germane. It concerns voting, not governance. It protects participating in elections, not the relative rank of elected officials.

In this case the six members of the majority forswore the catharsis of righting a wrong. They had the courage required by the court's institutional ethic: They knew it was right not to rectify a wrong that was beyond the reach of the law at issue. That one of the six is black was irrelevant -- magnificently so. That is the importance of the phrase, '' . . . Thomas, JJ., joined.''

George F. Will is a syndicated columnist.

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