Stephen I. Vladeck *
Writing for the 1966 volume of the Supreme Court Review, Professor Alex Bickel was hardly bashful in his criticism of the Supreme Court’s disposition of three high-profile cases from the preceding Term, each of which had raised fundamental constitutional questions of first impression about the newly enacted Voting Rights Act of 1965. Although his objections to the Court’s decisions in Harper v. Virginia Board of Elections and Katzenbach v. Morgan went to the merits, his real frustration with Chief Justice Warren’s opinion for the Court in South Carolina v. Katzenbach, which upheld several of the Voting Rights Act’s central provisions as valid exercises of Congress’s power to enforce the Fifteenth Amendment, was that it reached the merits in the first place.
* Professor of Law and Associate Dean for Scholarship, American University Washington College of Law. J.D., 2004, Yale Law School; B.A., 2001, Amherst College. My thanks to Kevin Walsh for inviting me to participate in the 2011 Allen Chair Symposium for which this essay was prepared, and to Aminah Qureshi and the staff of the University of Richmond Law Review for their patience. Although I co-authored the Brief of Amici Curiae Professors of Federal Jurisdiction in Support of Appellant in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011), which argued against Virginia’s standing to challenge the constitutionality of the ACA (and from which some of the arguments offered herein have been derived), the views expressed in this essay are mine alone.