Court Order

July 3, 2013
BY Eric Hal Schwartz
Jewish groups comment on affirmative action, Voting Rights Act rulings
Supporters of the Voting Rights Act rallied to stop its being struck down. The court voted the act was out of date. One group of Jewish leaders said, “The court has taken away a safeguard.” (Win McNamee/Getty Images)

Supporters of the Voting Rights Act rallied to stop its being struck down. The court voted the act was out of date. One group of Jewish leaders said, “The court has taken away a safeguard.” (Win McNamee/Getty Images)

The Supreme Court ended its current term on Wednesday of last week, after days of momentous decisions on important national issues. Though its rulings on same-sex marriage continue to dominate headlines, the court’s verdicts on the issues of affirmative action and the Voting Rights Act also sparked responses from Jewish organizations and leaders.

Monday’s 7-1 decision to send the affirmative action suit Fisher v. Texas back to lower courts, ordering closer scrutiny of affirmative- action practices, was claimed as a victory by both sides and garnered cautious optimism from the Religious Action Center, which had advocated maintaining
the current standards of affirmative action in higher education.

RAC Director Rabbi David Saperstein acknowledged that it may only slow down future restrictions but that ultimately the court’s choice “upholds the use of affirmative act-ion, the principle of diversity and the understanding that race-conscious remedies may be necessary to ensure diversity, even as we are aware that the decision’s wording indicates the Court may welcome future opportunities to review and potentially restrict affirmative action.”

Both the RAC and the American Jewish Committee filed amicus briefs on behalf of the University of Texas and its program. AJC general counsel Marc Stern pointed out that defining the right amount of diversity is not necessarily something on which judges can expertly rule.

“These questions are not given legal scrutiny,” he said. “They’re sort of an art practiced by educators.”

With the high court returning the case to the state judiciary, the final resolution remains uncertain.

“It’s an open question of what will happen when it gets back to the state,” Stern said. “All I can say is both sides claim victory.”

Jewish groups were far more certain in their nearly unanimous disapproval of the Supreme Court’s decision on the Voting Rights Act. In the ruling in Shelby County v. Holder, the court struck down Section 4 of the VRA, the part that defined the areas of the country that required federal preclearance before enacting any changes to voting procedures. While most of the territory thus marked encompassed southern states, such as Tennessee where Shelby County is located, a patchwork of other parts of the country, such as a section of upstate New York, were also listed as requiring extra scrutiny due to a history of discrimination and attempted vote suppression when then act was passed in the mid-1960s.

It was a narrowly split 5-4 decision with all three Jewish justices — Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan — dissenting. Several Jewish groups, some of which had filed amicus briefs in support of upholding the act, expressed outrage at the ruling, harshly criticizing the justices who comprised the majority.

The National Council of Jewish Women also released a statement severely criticizing the decision, pointing out the bipartisan nature of the recent extension of that act as a sign of its continued necessity.

“When Congress voted overwhelmingly to reauthorize the Voting Rights Act in 2006, it did so based on an extensive record of ongoing attempts to disenfranchise minority voters,” said Nancy Kauffman, CEO of the NCJW.

“There are states where [the VRA] serves a valuable function,” Stern said. “The court has taken away a safeguard.”

The majority court opinion stated that the VRA in its role as part of the larger civil rights push of the 1960s had done very well in breaking up discriminatory practices but that Shelby County was correct in saying that the VRA’s definition of where preclearance restrictions were necessary was out of date.

In his opinion, Chief Justice John Roberts wrote that Congress “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”

“Preservation of the VRA remains essential to our national progress toward a more perfect union,” said Jewish Council of Public Affairs President Rabbi Steve Gutow in a statement that also urged Congress to take up the matter. “Congress needs to act to remove the obstacles to the ballot so that no American is denied the right to vote.”

“We’ll be lobbying Congress to address those shortcomings,” said Barbara Weinstein, associate director at the RAC.

Less than a day after the court’s ruling, Texas pushed through new voter-ID and redistricting plans previously rejected as discriminatory under the VRA.

“That’s just Texas strutting its stuff,” Stern said, explaining that the new ID laws will serve to discourage many who want to vote and will make it harder, especially for minorities, to exercise the franchise.

There are still parts of the VRA that can be used to pursue cases of voter discrimination, but the burden of proof now rests mainly on those claiming discrimination rather than on lawmakers to prove their plan does not discriminate.

With the judicial decisions expanding opportunities for same-sex couples following on the heels of these other rulings, there were many Jewish groups that seemed to experience emotional whiplash, with announcements condemning and praising the Supreme Court coming within hours of each other. The groups may have been discouraged by some of the rulings, but they have it made it clear they will continue to press for their causes.

“It’s definitely been a mixed week,” Weinstein said.

Eric Hal Schwartz writes for JT’s sister publication, Washington Jewish Week.

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