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CIVIL RIGHTS UNDER FIRE: 

RECENT SUPREME COURT DECISIONS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

OCTOBER 8, 2009 

Serial No. 111–32 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Majority Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

JERROLD NADLER, New York, Chairman 

MELVIN L. WATT, North Carolina 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 
(III) 

C O N T E N T S 

OCTOBER 8, 2009 

Page 

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable F. James Sensenbrenner, Jr., a Representative in Congress 

from the State of Wisconsin, and Ranking Member, Subcommittee on the 

Constitution, Civil Rights, and Civil Liberties .................................................. 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4 

WITNESSES 

Mr. Armand Derfner, Derfner Altman & Wilborn 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Aderson Bellegarde Franc ̧ois, Associate Professor of Law, Howard University School of Law 

Oral Testimony ..................................................................................................... 23 

Prepared Statement ............................................................................................. 25 

Mr. Debo P. Adegbile 

Oral Testimony ..................................................................................................... 63 

Prepared Statement ............................................................................................. 65 

Ms. Dahlia Lithwick 

Oral Testimony ..................................................................................................... 83 

Prepared Statement ............................................................................................. 85 

(1) 

CIVIL RIGHTS UNDER FIRE: 

RECENT SUPREME COURT DECISIONS 

THURSDAY, OCTOBER 8, 2009 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 11:31 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Nadler, Conyers, Watt, Scott, Johnson, 

Jackson Lee, Sensenbrenner, and Franks. 

Staff present: (Majority) David Lachmann, Subcommittee Chief 

of Staff; LaShawn Warren, Counsel; and (Minority) Paul Taylor, 

Counsel. 

Mr. NADLER. This hearing of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties will now come to order. I 

thank everyone for attending. I will now begin by recognizing myself for a 5-minute opening statement. 

Today’s hearing examines the recent Supreme Court decisions affecting the civil rights of all Americans. While the Court has its 

constitutionality prescribed role, Congress—and specifically this 

Subcommittee—do as well. 

I want to make it clear from the outset that the purpose of this 

hearing is not to question the legitimacy of the Supreme Court’s 

place in our system of checks and balances. Whether or not we consider a decision of the Court to be well considered or clearly erroneous, the rule of law demands that we have a vigorous and independent judiciary. 

As Chief Justice Marshall wrote, ‘‘It is emphatically the province 

and duty of the Judicial Department to say what the law is. Those 

who apply the rule to particular cases must, of necessity, expound 

and interpret that rule.’’ 

In Federalist 78, Alexander Hamilton explains the importance of 

this principle in a system of checks and balances: ‘‘The complete 

independence of the courts of justice is peculiarly essential in a 

limited Constitution. Limitations of this kind can be preserved in 

practice no other way than through the medium of courts of justice, 

whose duty it must be to declare all acts contrary to the manifest 

tenor of the Constitution void. Without this, all the reservations of 

particular rights or privileges would amount to nothing,’’ unquote, 

from the Federalist Papers, a precursor of Marbury v. Madison. 
2 

For this reason, while I have disagreed with the Court on many 

occasions, I have always opposed efforts to attack the institution’s 

legitimacy or its independence. Efforts, such as stripping the courts 

of their jurisdiction to decide constitutional questions or efforts 

through appropriations to block enforcement of specific decisions 

are an assault on the very rule of law and our constitutional system of government, the sorts that we saw in this Congress, although unsuccessful, thankfully, a few years ago. 

So, for example, while I have watched in dismay as the Court 

struck down the Religious Freedom Restoration Act on what I believe to be an incorrect reading of section 5 of the 14th amendment 

and its recent discovery of an individual right to stockpile firearms 

in violation of the clearly expressed will of the electorate, I recognize that the Court is fulfilling its function. 

I know some of my colleagues have questioned the Court’s jurisprudence in areas of abortion and church-state relations, and the 

previous generation—many—in the previous generation thought 

the Brown v. Board of Education case was wrongly decided. Whatever side one is on in any of these issues, any call for massive resistance is misplaced and dangerous to our freedoms. 

Nonetheless, it is appropriate to examine what the Court has 

done and what the effects of those decisions may have on our 

rights. Furthermore, it is absolutely correct for the Congress to respond to the Court’s decisions by acting within our own constitutional sphere of authority. 

It would be much simpler if there were a clear and easy reading 

of every law and the application of every constitutional provision. 

Calling balls and strikes is the job of umpires, but the justices have 

a more complicated task. 

When many of our best minds disagree strongly on the meaning 

of the grand phrases in the Constitution, you need more than an 

umpire. No matter how often that ill-considered metaphor is repeated by senators or judicial nominees, it is simply false to assume that judges do not interpret or can avoid interpreting, for 

that matter, and that they are not informed in that process of interpretation by their knowledge, experience and reason. Judges are 

not simply umpires. 

Earlier this year, with the enactment of the Lilly Ledbetter Fair 

Pay Act, Congress moved to correct the Court’s misreading of a 

statute. And last year, I think it was, we moved to correct the 

Court’s misreading of the Americans with Disabilities Act against 

the clear intent of Congress, and we solved that by passing another 

statute. That is an appropriate remedy. 

On constitutional rulings, we have fewer options, but we do need 

to understand the direction the Court has given us and legislate accordingly. Where we believe the Court’s rulings have gone too far 

afield, the Constitution provides the remedy of a constitutional 

amendment, albeit a very difficult remedy. 

With that in mind, I look forward to the testimony of our distinguished panel of witnesses today. All three branches of government 

face some really difficult challenges in the years to come. Understanding those challenges is the first step in fulfilling our constitutional mandate. 
3 

With that, I yield back, and I will now recognize the distinguished Ranking Member of the Subcommittee, the gentleman 

from Wisconsin, for 5 minutes for an opening statement. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

During its last term, the Supreme Court was asked to strike 

down the 2006 reauthorization of the seminal Voting Rights Act, 

but it rejected that invitation, and I expect future challenges to 

that legislation will also fail as long as the Supreme Court continues to respect the role of Congress in enforcing the protections 

of the 14th amendment. 

The Voting Rights Act of 1965 was amended or reauthorized in 

1970, 1975, 1982, and 1992. And each time, it was amended and 

reauthorized on a strongly bipartisan basis. I am proud to have a 

leading hand in preserving and strengthening that essential tradition when the act was last reauthorized in 2006. 

That overwhelmingly bipartisan legislation was propelled by the 

President—to the President’s desk by the force of 13 hearings on 

the legislation held in the House alone. More were held in the Senate. As I said on the House floor during debate on the legislation 

at that time, that record constitutes one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 30 years I have been honored to serve 

as a Member of this body. 

Indeed, the substantial volume of evidence compiled to justify reauthorizing the Voting Rights Act far exceeds the amount of evidence the Supreme Court has found adequate in other contexts in 

which Congress’s power is less broad than its power to remedy discrimination. 

To give just one example, in Nevada Department of Resources v. 

Hibbs, the Supreme Court relied only on the following sources in 

holding under—the Congress under the 14th amendment had the 

power to enact the Family and Medical Leave Act: a Senate report 

citation to a Bureau of Labor Statistics survey revealing gender 

disparities in the private sector provision of parenting leave; submissions from two sources at a hearing that stated that public-sector parental leave policies differ little from private-sector policies; 

and evidence that 15 states provided women up to 1 year of extended maternity leave, while only four states provide it for similarly extended paternity leave; and a House report’s quotation of a 

study that found that failure to implement uniform standards for 

parenting leave would leave Federal employees open to discriminatory and possibly—open to discretionary and possibly unequal 

treatment. 

In contrast, the record supporting the reauthorization of the Voting Rights Act assembled by this Committee alone consists of over 

12,000 pages of testimony, documentary evidence and appendices 

from over 60 groups and individuals, including several Members of 

Congress. There is no right more fundamental than the right to 

vote. In a democracy, it is only the right to vote that can protect 

all the other rights. That right is so central to our system of government that it is protected by five separate amendments to the 

Constitution, including the 14th, 15th, 19th, 24th, and 26th amendment. 
4 

Through the preclearance process, the Voting Rights Act alone 

has done a wonderful job in helping clear discriminatory obstacles 

to voting before they have had the time to take root. But in the 

end, the evidence presented to Congress was overwhelming. While 

progress has been made, much still needs to be done, and the Voting Rights Act remains as necessary as ever to maintain that 

progress. 

The few critics opposed to extending the Voting Rights Act claim 

that its very success was justification for its expiration. These critics miss the fundamental point. Without the Voting Rights Act, we 

cannot ensure that gains made by minorities in the past are not 

jeopardized in the future; nor can we prevent future abuses from 

occurring. Even in 2009, we have not overcome discrimination in 

voting. 

As the House Judiciary Committee report on the legislation set 

out, under the preclearance provisions of the Voting Rights Act, 

more section 5 objections were lodged between 1982 and 2004 than 

were interposed between 1965 and 1982. And since 1982, DOJ has 

objected to more than 700 voting changes that have been determined to be discriminatory. 

In City of Rome v. U.S., the Supreme Court made clear that the 

Voting Rights Act extension was plainly constitutional, in light of 

the 75-year period of pervasive discrimination it was attempting to 

remedy. In that case, the Court held that statutory remedies were 

necessary to counter the perpetuation of 95 years of pervasive voting discrimination. And when one considers the full extent of voting discrimination in America, another 25 years of remedial measures appear as plainly appropriate, given the 95-year history of discrimination it is intended to combat. 

Thank you, Mr. Chairman. And I look forward to our discussion 

here today. 

Mr. NADLER. I thank the gentleman. 

I will now recognize for an opening statement the distinguished 

Chairman of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Nadler and Chairman 

Emeritus Sensenbrenner. 

I think this is a very important direction that the Constitution 

Committee is embarking on, reviewing the work of the courts, especially the Supreme Court, not from a point of view of whether your 

political ideology comports with theirs or not, but whether they are 

performing in accordance to the general set of directions and guidelines that we have established for ourselves to work in. I mean, 

that is what a democracy is about. We can change course, as we 

have historically here. 

And so I want to commend Chairman Nadler for his very moderate approach to what our work job is here today. 

We could be blasting the hell out of the court system, you know 

that? Because they have done some perfectly lousy work over the 

years, not just recently, but historically. I am in the process of putting something together on that. 

But that wouldn’t get us very far. What we are trying to do is 

improve the Court, not just criticize the Court. And I join with my 

colleague, Mel Watt, in commending Jim Sensenbrenner for his 

very important work in this respect. 
5 

As Chairman of the Committee and as a Member of the Committee for almost a couple decades now—and it is very—three decades now—God, your seniority is piling up here. You are one of the 

oldest Members in the Congress, as I figure it offhand. 

Mr. NADLER. I think he means of service, not in chronology. 

Mr. CONYERS. But it is important that we have Members of the 

Judiciary Committee that really see into the full extent of the role 

of us to the Supreme Court, especially—and that is why these witnesses become very important. And I want to praise the Committee 

again for the selection of the people that are before us, because this 

is what they do. They have been analyzing, thinking, writing, 

speaking about this for quite some time. 

And we think there is a lot that can be done to improve the relationships between the Congress and the courts. As I was talking 

with Professor Derfner and his archivist wife earlier this morning, 

how do you tell when the Court is misinterpreting the plain intent 

of the Congress and running off in a direction of their own without 

any basis whatsoever? And then sometimes when they do have a 

basis, it is incorrect. 

But they pull things out of thin air more frequently than even 

the legal community wants to admit to, much less citizens who 

have no way of going through hundreds of pages of dense legal discussion. 

And so this is important. I haven’t suggested to the Chairman 

and the Ranking Member yet that there ought to be yet another 

hearing, that this is not a one-hearing subject. There is a lot to go 

into. And there is a lot we can do, in terms of analyzing the work 

product of the judiciary. It was said earlier that, if they was some 

body, if there was some group that was over the Supreme Court, 

they would be reversed at least half the time. 

And the response was, there is some group that is over the Supreme Court, and it is the Congress. And that is in the Judiciary 

Committee. The Appropriations Committee can’t reverse the Supreme Court. The Congress can. The Education Committee can’t. 

The Armed Services, Intelligence Committees can’t. This is the peculiar responsibility that this Committee has in their relationship 

to the whole Federal court system. And so I am very proud of all 

the Members that serve here. 

Mr. NADLER. I thank the gentleman. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I ask that other Members submit their statements 

for the record. Without objection, all Members will have 5 legislative days to submit opening statements for inclusion in the record. 

Without objection, the Chair will be authorized to declare a recess 

of the hearing, which I will do only if there are votes on the floor. 

We will now turn to our panel of witnesses. As we ask questions 

of our witnesses, the Chair will recognize Members in the order of 

their seniority on the Subcommittee, alternating between majority 

and minority, provided a Member is present when his or her turn 

arrives. Members who are not present when their turns begin will 

be recognized after the other Members have had the opportunity to 

ask their questions. 

The Chair reserves the right to accommodate a Member who is 

unavoidably late or only able to be with us for a short time. 
6 

I now introduce the distinguished panel of witnesses. Armand 

Derfner is a distinguished scholar in residence in constitutional law 

at the Charleston School of Law. He is a nationally renowned civil 

rights attorney who has argued and won five cases before the Supreme Court of the United States. He graduated from Princeton 

University in 1960 and received his J.D. at Yale Law School in 

1963. He also clerked for the late David Bazelon, chief judge of the 

United States Court of Appeals for the District of Columbia. 

Alderson—what? I am sorry. Aderson Franc ̧ois is the supervising 

attorney at the Howard University School of Law Civil Rights Clinic. He also teaches civil procedure, legal methods, and Supreme 

Court jurisprudence. In his practice, Professor Franc ̧ois has alternated between commercial litigation, pro bono death penalty representation, and civil rights policy analysis. 

Before joining the Howard faculty in fall of 2005, Professor 

Franc ̧ois taught at the NYU School of Law. He received a B.A. 

from NYU in 1988 and a J.D. from NYU School of Law, 1991, 

which makes him doubly commendable, since I represent NYU and 

since my son is currently a student there. He clerked for the late 

A. Leon Higginbotham, Jr., chief judge of the United States Court 

of Appeals for the Third Circuit. 

Debo Adegbile—I hope I pronounced that right—is the director of 

litigation at the NAACP Legal Defense and Education Fund. He is 

a civil rights attorney who has argued cases before the Federal 

courts. Most recently, he successfully defended the recently reauthorized section 5 of the Voting Rights Act before the U.S. Supreme 

Court in Northwest Austin Municipal Utility Number One v. Holder. More on that later. 

Before taking his current position as director of litigation, Mr. 

Adegbile served as the associate director of litigation and director 

of the political participation group with the NAACP LDF, Legal 

Defense Fund. Prior to joining the LDF, he was a litigation associate at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, 

where he litigated commercial and civil rights cases. Mr. Adegbile 

received his J.D. from New York University’s School of Law 1994 

and a B.A. from Connecticut College. 

Dahlia Lithwick is a contributing editor at Newsweek and senior 

editor at Slate. She writes Supreme Court dispatches and jurisprudence and has covered the Microsoft trial and other legal issues for 

Slate. Ms. Lithwick received her J.D. in 1996 from Stanford University and a B.A. from Yale University in 1990. She clerked for 

Judge Procter Hug on the U.S. Court of Appeals for the Ninth Circuit. 

I am pleased to welcome all of you. Your written statements in 

their entirety will be made part of the record. I would ask each of 

you to summarize your testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light at your 

table. When 1 minute remains, the light will switch from green to 

yellow and then red when the 5 minutes are up. 

We will start with Professor Derfner. You are recognized for 5 

minutes, sir. 
7 

TESTIMONY OF ARMAND DERFNER, 

DERFNER ALTMAN & WILBORN 

Mr. DERFNER. Thank you very much, Mr. Chairman and Members of the Subcommittee. It is an honor to appear here today. And 

as I count back, I think that, in my career, this is the ninth time 

that I have appeared before this Subcommittee or a related Subcommittee of the House Judiciary Committee, and it is always a 

great event for me to come here, because I know that I am here 

to assist in the great work of this Subcommittee and doing the 

work of the Nation. 

My topic today will focus on a specific area, that is, the Supreme 

Court’s decisions in interpreting the laws of this Congress that deal 

with civil rights and civil liberties. And I will be addressing some 

of the Chairman’s and other Members’ concerns about those decisions. 

There was not always such concern. There was once a time when 

the Supreme Court and Congress were in better sync. My first case 

before the Supreme Court was 40 years ago, the first major section 

5 case under the Voting Rights Act, Allen v. State Board of Elections. 

The Supreme Court in that case took note of the fact that the 

law had been passed to enforce the guarantees of the 15th amendment and make sure that those guarantees were effective. The 

court referred to that as a ‘‘laudable goal.’’ The court called the 

statute a remedial statute which it was obligated to construe 

broadly in order to make sure that Congress’s goals were effective. 

And because of that, the Court did give a broad interpretation of 

section 5, which has led to its use as a protection against voting 

discrimination since that time. Sectionq 5 and the Voting Rights 

Act, in fact, helped to save this Nation. 

Unfortunately, if that same case—— 

Mr. NADLER. Section 5 of the 14th amendment, you mean? 

Mr. DERFNER. Section—well, section 5—this is section 5 of the 

Voting Rights Act—— 

Mr. NADLER. Or are you talking about section 5 of the Voting 

Rights Act? 

Mr. DERFNER [continuing]. Which was passed pursuant to section 

5 of the 14th amendment, and the 15th amendment, as well. Unfortunately, if that case were to come before the Supreme Court 

today, the odds are that it would be decided in a very different 

way, because today’s Supreme Court takes a very different approach to the job of interpreting this Congress’s laws, even though 

under the Constitution the Court’s job in interpreting is to interpret what Congress had to say and what Congress passed. 

The proof of the pudding is something I learned in looking—in 

preparing for this hearing which astounded me. In the past several 

years, Congress has had to go back no fewer than five times—and 

probably more—to correct Supreme Court decisions that misinterpreted Congress’s statutes. And I have listed in my testimony 15 

cases the Supreme Court has decided that Congress has had to correct. There are others that I haven’t listed. 

The five statutes were the Civil Rights Restoration Act of 1987, 

the Civil Rights Act of 1991, the Voting Rights Amendments of 

2006, the ADA amendments of 2008, and most recently, the Lilly 
8 

Ledbetter Fair Pay Act of this year. In each of those cases, moreover, which were all passed by huge bipartisan margins, the Congress has felt compelled to put in the preamble findings and purposes that specifically say the Supreme Court got it wrong. We 

meant this. The Supreme Court did not interpret it that way. 

It is astonishing to have a record like that, and it really is a sign 

to me—especially reading the cases—that the Supreme Court has 

been very much out of sync with its proper function of giving fair 

interpretation to Congress’s meaning. 

And it is not over yet. There are cases now that I think Congress 

is considering. One case deals with the IDEA, Arlington District v. 

Murphy, as well as other cases. 

I quoted a dialogue in my testimony in which one professor—two 

professors were talking, and one said, ‘‘You read that statute for all 

it might be worth rather than for the least it has to be worth, don’t 

you?’’ And that is a very telling thing, because I think what we see 

is that the Supreme Court has been reading Congress’s statutes for 

the least that they have to be worth as opposed to giving them a 

fair reading of what Congress intended. 

If I had a piece of advice for Congress, I would say, ‘‘Keep on 

doing what you are doing. Keep on passing statutes when necessary to correct the misinterpretations. Keep on putting in the 

preambles those very specific references to what you have had to 

do.’’ And at some point, the message has to get across. In fact, it 

would not be a bad idea to write preambles that say, ‘‘This statute 

is a remedial one. We intend for it to be interpreted broadly to 

achieve our basic purposes.’’ 

Thank you very much. 

[The prepared statement of Mr. Derfner follows:] 
9 

PREPARED STATEMENT OF ARMAND DERFNER
10 
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13 
14 
15 
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22 

Mr. NADLER. Thank you. 

I now recognize Professor Franc ̧ois for 5 minutes. 
23 

TESTIMONY OF ADERSON BELLEGARDE FRANC ̧ OIS, ASSOCIATE PROFESSOR OF LAW, HOWARD UNIVERSITY SCHOOL 

OF LAW 

Mr. FRANC ̧ OIS. Good morning, Mr. Chairman and Members of the 

Subcommittee. Thank you for the opportunity to testify before you 

today. 

The question I respectfully plan to address this morning is 

whether and to what extent the United States Supreme Court, 

under Justice Roberts, has kept or broken faith with the constitutional ideal and congressional mandates for respect for civil rights 

and human equality. 

In preparing for the testimony today, I—and by ‘‘I,’’ I actually 

really mean my students in the clinic—analyzed every single civil 

rights decision that the Court has issued since the 2005 term, the 

first term when both Chief Justice Roberts and Justice Alito served 

a full term. 

I do not propose to bore the Committee today with a full analysis 

of these cases. Rather, I wish to emphasize two main conclusions 

that it seems to me our analysis shows. 

If the question that is posed to the Committee is to what extent 

the Supreme Court over the last four terms can be characterized 

as being anti-civil rights, the answer to me is twofold. It is both 

that the Court has been less anti-civil rights than some of us might 

fear, but also far more hostile to civil rights than many of us are 

willing to imagine. 

By that, I mean this: Over the last 4 years, when interpreting 

statutory texts, with notable exception, the Supreme Court has 

been relatively solicitous toward civil rights plaintiffs than respectful of congressional intent. I do acknowledge that there are some 

notable exceptions: Ledbetter being one for example; Ashcroft v. 

Iqbal being another; Gross being yet another. 

However, in the main, the record of the Court hasn’t been that 

fundamentally different from, say, that of Chief Justice Rehnquist, 

though it has been different than, obviously, under the Burger 

court and under the Warren court. 

For example, the vast majority of cases, civil rights cases the 

Court decides, they do not decide it in the 5-4 split, but rather fairly unanimous decisions, 9-0, 7-2, 6-3. For example, in United States 

v. Georgia, a 2005 opinion authored by Justice Scalia, that held 

that Congress had validly abrogated the states’ 11th amendment 

immunity under the ADA in permitting a prisoner to sue under 

title II of the ADA. 

That being said, it seems to me that the second conclusion that 

one can also draw from the Court’s jurisprudence over the last four 

terms is that, in contrast to when the Court is interpreting statutory text, when the Court is actually issuing constitutional rulings, 

the Court has adopted an interpretive stance toward federalism, 

the Equal Protection Clause, the commerce clause, the state action 

doctrine that have severely limited the ability of plaintiffs to recover in civil rights cases and also severely restricted Congress’s 

power to issue new civil rights legislation. 

The few examples that I may cite are, for example, the parents 

concern versus the out-of-school district case during the 2006 term 

in which, for the first time, for the first time since Brown, the 
24 

Court adopted the view of equal protection, which if taken seriously 

would seriously hamper most institutions’ ability to continue toward the goal of desegregation. 

For another example, in the MUD case I am sure that my colleague, Debo Adegbile, will address in more detail, while the Court 

did uphold the constitutionality—or, I should say, the Court refrained from truly ruling on the constitutionality of section 5, there 

was certainly a tremendous amount of language in the Court’s majority opinion by Justice Roberts that seriously question whether or 

not Voting Rights Act section 5 could withstand what Justice Roberts called a federalism cost. 

And there are more examples that one can think of, including, 

for example, the Court’s view on Congress’s ability to abrogate the 

states’ 11th amendment immunity. According to the Court’s most 

recent doctrine, the only time Congress may do so is when Congress do so in the pursuit of an independent constitutional right, 

as opposed to Congress’s own finding as to how to enforce the 14th 

amendment. 

I will not presume to provide the Committee with advice on 

whether and how to counteract what many perceive as an unnecessarily cramped civil rights jurisprudence on the part of the Court 

under Justice Roberts. Certainly, insofar as the Court has sometimes given less than due deference to congressional intent interpreting statute, delivering quite a few decisions in the last four 

terms that could and have been corrected by legislative amendment. 

We talked about Ledbetter. It seems to me it is also worthwhile 

to talk about Gross, an interpretation of the ADA that makes it far 

more difficult for litigants to recover. We also talk about Ashcroft 

v. Iqbal, a decision that has essentially eliminated supervisory liability under Bivens action. 

However, as important as these legislative fixes may be for civil 

rights advocates and litigants, it does seem to me that the far more 

formidable challenge posed by the Court’s jurisprudence over the 

last four terms is not so much its misinterpretation of statutory 

texts, but rather its adoption of a constitutional jurisprudence or 

federalism, 11th amendment, state action doctrine, commerce 

clause power, and equal protection enforcement clause that have 

severely limited the ability of this body to act and pass civil rights 

legislation. 

While the doctrines of separation of powers and judicial review 

legitimately limit Congress’s ability to revisit the Court—to revisit 

the Court’s constitutional rulings, it nonetheless seems to me a 

worthwhile project for this Committee to consider investigating the 

ways in which it may begin to challenge the Court to reconsider its 

ruling on topics as crucial for the advancement of civil rights as 

federalism, equal protection, 11th amendment immunity, state action doctrine, and commerce clause power. 

Thank you very much. 

[The prepared statement of Mr. Franc ̧ois follows:] 
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Mr. NADLER. Thank you, sir. 

I will now recognize Professor Adegbile for 5 minutes. 
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TESTIMONY OF DEBO P. ADEGBILE, NAACP LEGAL DEFENSE 

AND EDUCATION FUND, INC. 

Mr. ADEGBILE. Thank you, Mr. Chairman. 

Mr. NADLER. If I mispronounce that, forgive me. 

Mr. ADEGBILE. Thank you, Chairman Nadler, Chairman Conyers, 

Ranking Member Sensenbrenner. It is a great pleasure to be with 

you this morning. 

Today, I will address myself to the recent Supreme Court case 

involving the constitutionality of section 5, an essential provision 

with which this Committee is at least as familiar as am I. I will 

touch very briefly on three points. 

First, I believe it is necessary to consider both the lower court 

opinion in the Northwest Austin case and the Supreme Court opinion in order to get a full picture of Congress’s considered judgment 

in 2006. I will elaborate on why. 

Second, the constitutionality of section 5 reauthorizations have 

never before turned upon a strict comparison of voting discrimination in covered and non-covered jurisdictions. This question, however, was a key focus of the Supreme Court during oral argument. 

And, of course, Congress did, in fact, consider this question during 

reauthorization. 

However, the litigants in the case did not focus on it in the 

briefs. And I want to speak to that issue a little bit so we can have 

a clearer understanding of exactly what Congress did on that question. 

Finally—and I think this is very important, whatever one’s view 

is of the constitutionality of section 5—and particularly before the 

ruling in the MUD case, that opinion needs to be modified by the 

Supreme Court’s re-interpretation of the bailout provision, which in 

my view substantially alleviates some of the constitutional concerns which certain justices and other commentators have expressed. 

Returning to my first point, the principal distinction between the 

lower court decision and the Supreme Court decision is that the 

lower court began with a close and careful study of the voluminous 

record assembled by Congress. The lower court considered the 

16,000 pages, 90 witnesses, 21 hearings, and 10 months of congressional legislative time. 

In so doing, the Court noted that Congress found progress in the 

area of voting, but also demonstrated convincingly that, unfortunately, minority voters remain exposed to threats to their right to 

vote. Those threats are real and not imagined, and Congress documented that very carefully. 

The lower court on this substantial record, in my view, properly 

deferred to Congress’s policy judgment that section 5 continues to 

be necessary. In contrast, the Supreme Court appeared to focus almost exclusively on the progress without also focusing on the ongoing discrimination, which Congress examined. This freed the Supreme Court to delve into policy questions and re-examine the congressional judgment in a way that did not paint a full picture of 

the record assembled by this body, nor, in my view, did it give full 

credit to the Court’s own precedents in this important area. 

Congress has an important and constitutionally sanctioned role 

in this area, and it must be respected by the Court, even in cir-
64 

cumstances where the Court would fashion a different statute if it 

was authorized and called upon to do so. 

In particular, I will now turn to this question of the comparison 

of covered and non-covered jurisdictions. As I mentioned, this was 

not a special focus of the briefs in part because the Supreme Court 

had already decided this issue in a number of previous cases. 

Nevertheless, Congress did examine this question. In particular, 

as this body is aware, there was an elaborate study of all of the 

section 2 cases that happened nationwide. Section 2, of course, in 

contrast to section 5, covers the whole country. And so, by looking 

at section 2, we have some metric about voting discrimination 

throughout the lands. 

What that study found is that 50 percent of the successful section 2 cases happen in covered jurisdictions, 57 percent. And that 

is particularly significant because only a quarter of the Nation’s 

population lives in those jurisdictions. 

It is made even more significant by the fact that those rulings 

since 1982 happened even as powerful section 5 was in place, so 

there were 600 objections in section 5 covered jurisdictions which 

dislodged some of the discrimination that would have been litigated 

about in the section 2 context. This is very serious evidence, and 

it was evidence that was before this Congress. 

Finally, on the bailout question, the specific point here is that 

the way the Supreme Court has interpreted the bailout statute. 

That, of course, is the piece of the Voting Rights Act that allows 

jurisdictions that can demonstrate what is effectively a clean bill 

of health in the area of voting discrimination can exempt themselves from the necessity of having to submit their voting changes. 

What the Court did in the case, seemingly in contrast to what 

Congress had intended, was to allow every single covered jurisdiction to be eligible to apply for bailout. What this means is that, if 

jurisdictions, in fact, feel burdened by the statute—a notion of 

questionable reality—then they are able to come forward and seek 

bailout to be exempted from the statute. 

I think that Congress should carefully see what happens with 

this new interpretation of the bailout statute. But by any measure, 

it alleviates some of the constitutional tension which appeared to 

concern the Court. 

Thank you. 

[The prepared statement of Mr. Adegbile follows:] 
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Mr. NADLER. Thank you. 

And a final witness we will hear from is Ms. Lithwick. I recognize you for 5 minutes. 

TESTIMONY OF DAHLIA LITHWICK, SENIOR EDITOR, 

SLATE MAGAZINE 

Ms. LITHWICK. Thank you, Mr. Chairman. Thank you, Mr. Chairman and Members of the Subcommittee. And thank you for this opportunity to speak to you today. 

I want to be clear that I am not here as a constitutional scholar 

or practitioner like my colleagues. I am just here as a reporter who 

has been covering the Supreme Court for 10 years and trying to 

tell people why, even though the Court is mysterious, it really, 

really matters. 

But I also want to be clear that the views that I express here 

today are my own and not those of Slate or Newsweek. 

I think it is no longer a matter of any real scholarly dispute that 

the current U.S. Supreme Court has worked hard in some ways to 

roll back what some conservatives have seen as the worst excesses 

of the Warren court era, from affirmative action to expanded rights 

for criminal defendants to expansive views of the right to vote that 

we have talked about today. And at times, this rolling back has 

been done boldly and unequivocally, as in the Seattle schools case, 

the parents case that Professor Franc ̧ois talked about. 

But I want to point out that more frequently it happens very undramatically in a series of feints and legal pirouettes, such as the 

voting rights case that we just talked about from last summer. 

And the most intriguing part to me as a journalist of all this is 

that, whether you are for or against this trend at the Supreme 

Court, nobody seems to know about it. It seems to have utterly escaped our notice as Americans that there is a profound difference 

between the Roberts Court and the Rehnquist Court. 

And most of us still think that we live in Sandra Day O’Connor’s 

America, despite the fact that her visions of affirmative action, 

abortion, church-state separation, and elections law have been 

eroded quite substantially in a very short time. Justice O’Connor 

herself made this point in a speech in Williamsburg this weekend 

when she talked about how the current court has ‘‘dismantled’’ her 

rulings in a few short years. 

I think as a Nation we have just completely missed out on the 

truth that the change from Samuel Alito to O’Connor really made 

a difference—I am sorry, from O’Connor to Alito. 

As an initial matter, I also want to be clear that the language 

of judicial activism versus restraint is almost utterly unhelpful in 

discussing the Roberts or any other Court. I think it is political and 

not legal shorthand for ‘‘I just don’t like the outcome in a case.’’ 

My colleague, Stuart Taylor, observed correctly, I think, in a column in the National Journal last year that every single member 

of the Supreme Court is an activist. And by any of the approximately six empirical measures of judicial activism—from overruling 

enacted acts of Congress, short-circuiting ones own precedents, 

overreaching to address issues not briefed in the case—the Roberts 

Court is clearly as activist as its predecessors. 
84 

I want to suggest here today that the reason that the public has 

not caught on to the very dramatic shift of the high court has happened very, very—for three very clear reasons. And I think the first 

has to do with a really intriguing intramural split on the Court’s 

conservative wing. 

There is no real debate that the Court is more politically conservative than it has been in decades. This will, I think, come some day 

to be seen as the most fundamental legacy of the Bush era. 

A 2008 study by Professor Richard Posner—who sits on the Seventh Circuit Court of Appeals—and William Landes at the University of Chicago demonstrated empirically that four of the five most 

conservative justices to sit on the Supreme Court since 1937 are 

sitting there now. And Justice Anthony Kennedy, the Court’s swing 

voter, ranked 10th using his empirical methodology. 

But to me, what is interesting is that there is a deep division between the conservative bloc on the Court, and it has much less to 

do with vision than approach. Justices Antonin Scalia and Clarence 

Thomas are advocating for bold, clear, swift changes to the law; 

Chief Justice John Roberts and Sam Alito have been inclined to 

move incrementally, quietly kicking old precedents, tests, and assumptions to the curb, but never explicitly renouncing them. 

So Scalia and Thomas would overturn old cases; Roberts and 

Alito want to step around them. Where Scalia and Thomas urge 

striking down acts of Congress, Roberts and Alito chip away at 

them. 

Even Justice Scalia himself in a concurrence in the Wisconsin 

Right to Life case derided his conservative brethren’s unwillingness 

to just overturn old precedent as ‘‘faux judicial restraint.’’ 

There is a second factor that contributes to the fact that the 

steady erosion of civil rights by the Court has gone undetected. In 

addition toward this trend toward overruling precedent by stealth, 

the Court has made dramatic changes without any drama by chipping away at the access to courts. Be it through the doctrines of 

standing or ripeness, by doing away with facial complaints, by subtly shifting the burden of proof on plaintiffs, it is harder and harder for victims of injustice to get the protections that this Congress 

seeks to protect them from. And just yesterday, the Court heard a 

rather remarkable case that really calls into question standing doctrine for establishment clause cases. 

Now, nobody is going to say that a change in standing doctrine 

is going to make front-page headlines, but it sure makes it hard 

to get into a courtroom. And so from environmental protections to 

worker protections to civil rights legislation, the Congress’s guarantees of equal justice can only be as robust as your ability to get into 

a courtroom. And I think the Roberts court makes that harder 

every year. It never makes the headlines. 

The final factor I want to touch on just briefly is that my colleagues and I are very much to blame in the media for not pointing 

out what is really happened in the last few years of the Roberts 

court because we are so focused on the next Brown and the next 

Miranda. The cases that don’t happen that way become too hard 

to explain. 

I just want to conclude by saying that, when the Court changes 

a law, shifts a burden, limits a test, increases standing require-
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ments, it is changing the law as surely as it would be doing if it 

handed down another Brown or another Roe. And so for scholars, 

advocates, litigators, anyone concerned about the erosion of civil 

rights at the Court, there needs to be a redoubled effort to think 

about why this is happening and think about why the public is 

missing it. 

With the prospect of one, possibly two new vacancies at the Supreme Court in the coming years, I think the time to look at these 

issues is now. Thank you so much for allowing me to speak to you. 

I hope I can answer your questions. 

[The prepared statement of Ms. Lithwick follows:] 

PREPARED STATEMENT OF DAHLIA LITHWICK
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Mr. NADLER. Thank you very much. 

And we will begin the questioning by recognizing myself for 5 

minutes of questioning. 

Mr. Derfner, in your written testimony, you say, ‘‘The longstanding precedent held there was an implied private right of action in statutes passed to protect a class of citizens, even if there 

is not a specific authorization for a private lawsuit. The court said 

that rule is applicable here. The guarantee of section 5 might well 

prove an empty promise unless the private citizen were allowed to 

seek judicial enforcement of the prohibition,’’ from an earlier decision. 

But this is ancient history. Today’s Supreme Court has outlawed 

the implied private right of action. Unless Congress specifically 

says in a statute that victims can sue, they can’t. Your only recourse is to hope that a government official or agency will decide 

to focus on the individual case, and this is symptomatic of what 

Ms. Lithwick said a moment ago by changing the standing and 

rightness doctrines, by shifting the burden of proof, by doing away 

with facial challenges, by making it harder for people to get into 

court, we have made it very difficult for plaintiffs to assert and protect their constitutional rights. 

Could Congress change this by passing a general statute that 

says, in the absence of specific language to the contrary, there is 

always an implied private right of action to protect statutory constitutional rights? Could we fix that? 

Mr. DERFNER. I think that could be very constructive. The court, 

again, would get to interpret that, and the question is whether a 

court interpreting a statute passed next year would apply fully 

what the Congress this year said about a broad right of action, but 

I think that would be a very constructive and good idea. 

Mr. NADLER. We couldn’t say that, with respect to all existing 

statutes, there is an implied right of action going forward? 

Mr. DERFNER. That might be a little broad if you said all existing 

statutes, but I think if you did it by categories—and I will give you 

one comparison. For a long time, there were questions about the 

statute of limitations. A lot of statutes don’t specifically have that. 

And the Court fumbled around for a number of years trying to 

figure out how to do that, and then Congress, about 1990, I think, 

passed a catchall and said, for all Federal statutes from here on 

that don’t have a specific statute of limitations, it is 4 years. And 

I think that might be a good model for the kind of private right 

of action statute. 

Mr. NADLER. Thank you. 

Professor Franc ̧ois, you noted the empirical distinction that you 

have catalogues—I suppose would be the word—between statutory 

interpretation where the Court in large decisions—9-0, 7-2—has 

generally been less dismissive of the clear intent of Congress as opposed to in civil rights cases, as opposed to constitutional cases, 

where I think you said, in a series of 5-4—basically 5-4 rulings, the 

Court has gone much farther afield. 

One might characterize it—I would be interested in your observation—one might characterize it as saying that maybe there are 

some people on the Court who think that where Congress can correct them, they would better be a little careful, but where Congress 
93 

can’t correct them, except by constitutional amendment, which is 

very difficult, they can be more disrespectful of the clear intent and 

of precedent and substituted their own predilections. 

Would that be a fair characterization? 

Mr. FRANC ̧ OIS. I suppose that one might characterize it this way. 

I think, though, that one encouraging sign in the Court’s jurisprudence is that, as Professor Derfner just pointed out, when Congress 

passes as such, to the extent that Congress makes its intent very, 

very clear, then they are a fair chance that the Court will uphold 

the statute. What Congress can no longer count on is for the Court 

to look at its intent and imply any sort of right of action or the 

remedies. 

So I do believe, though, that in the absence of statutory text, the 

Court constitutional jurisprudence, when it comes to civil rights— 

and one can choose any one of the areas that I have just mentioned—it does indicate a certain hostility toward civil rights in 

general. 

Mr. NADLER. Okay. Thank you. 

Let me ask one question, and I am not sure who to direct this 

to. In the Northwest Austin Municipal Utility District case, beyond 

the narrow ruling permitting that district to bailouts in the coverage of section 5, the Court included language in the opinion that 

appears to raise serious concerns of the continued constitutional viability of section 5. 

Do you think the Supreme Court was sending a message to Congress, ‘‘You’d better do something about section 5 before we declare 

it unconstitutional’’? Are they sending us a message? And what are 

your concerns about future voter rights cases in light of this decision? 

And let me make it a little more complicated. Starting with the 

Boerne case—Boerne—City of Boerne—maybe not starting, but certainly in that case, and certainly in these cases, the—and a series 

of other cases—the Court has indicated that Congress has to have 

a record to justify its policy judgments. 

Why is that a concern of the Court? Why should the Court be 

concerned whether the Congress is intelligent or well based or not 

well based in its policy judgments? The electorate should be concerned, but why is that a constitutional concern of the Court? And 

why should it affect the constitutionality of what we do, whether 

we have considered all the factors or not? Maybe that should affect 

our elections and our intelligence, but why is the constitutionality 

of what we do affected by whether we have done it based on a lot 

of facts and a lot of study or not? 

So there are really two questions. One, is the Supreme Court 

sending us a message on section 5 that we had better heed and do 

something about it, if we could figure out what to do? And, two, 

the second question I just asked. Who wants to do that? 

Mr. ADEGBILE. Perhaps I will start. I think it is fair to say that 

every decision of the Supreme Court sends some signal when they 

are interpreting a statute of Congress. The signals can be more direct or indirect. 

I think it was somewhat unexpected that so much of the opinion 

focused on a question that the Court was not deciding. That was 

not expected as we read the decision. But it is also fair to say—— 
94 

Mr. NADLER. Which question? Namely the—— 

Mr. ADEGBILE. On the constitutional question. So the Court essentially did not reach the constitutional question, but spends the 

first 11 pages of its 17-page majority talking about the constitutional question. We call that dicta in ordinary circumstances—— 

Mr. NADLER. And the question is, is that sending us a message? 

Mr. ADEGBILE. Exactly. Yes. You know, why was there so much 

focus on the dicta on a question that they were not reaching? 

I think it is fair to say that the Constitution in this area, under 

the 4th amendment and 15th amendment, calls for a conversation 

between Congress and the Supreme Court. Both bodies have a role, 

but it is important to note that Congress has expressed powers in 

this area, expressed powers that have been recognized in a whole 

host of decisions in the voting area and in other contexts, and even 

in the Boerne decision, on this question of Congress doing its homework and what the record looks like. 

There is a not-often-quoted line in Boerne that says that the 

analysis in ordinary circumstances does not properly begin with 

what the record looks like, but it begins with, who is the body that 

is constitutionally appointed to decide? People don’t talk about that 

line in Justice Kennedy’s opinion, but I think that that is the important—Congress has a role in making sure that all citizens can 

vote unfettered. That is the duty that Congress has. 

And it would be remarkable for the Supreme Court, particularly 

after the history of the Supreme Court having struck down voting 

laws and having seen the country walk backward after those laws 

were struck down—and I think Chairmen Sensenbrenner and Conyers filed a brief on this topic in the Supreme Court case—it would 

be extraordinary for the Court not to take heed of that important 

history and step over the line into second-guessing the policy judgment. 

But, obviously, the Supreme Court continues to have some difficulty with the way in which Congress is discharging its responsibility. That, to me, does not suggest that Congress should cut and 

run. But, of course, it is up to this body how it proceeds. 

Mr. NADLER. I thank you. My time is expired. Although I would 

like to pursue this, my time is expired. 

I now recognize the distinguished Ranking Member of the Committee for 5 minutes. 

Mr. SENSENBRENNER. Well, thank you very much, Mr. Chairman. 

I am going to pursue this. 

As Chairman, I put together the hearings and the construct on 

how to assemble the legislative record to justify the reauthorization 

in 2006. I think it is fair to say that the Court did not rule section 

5 unconstitutional, but section 5 is hanging on by a thread now. 

And what we did on a bipartisan basis is we started back looking 

at the Katzenbach case, which uphold the 1965 Voting Rights Act 

law, where they basically deferred to Congress in making a finding 

that article I, section 4 of the Constitution could be overridden because there was such an overwhelming showing of discrimination 

when the Voting Rights Act was passed, and they went to the legislative record and looked at that. 

Well, the legislative record was extensive in 1965. But in terms 

of the volume, it paled in comparison to what was done in 2005 and 
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2006, with 12,000 pages, 13 hearings, 60 witnesses, lots of submissions from the witnesses and from other concerned members of the 

public. 

Now, you know, if the Katzenbach construct—which was directly 

in point in 1965—isn’t any good any more, as the Court seems to 

hint, what do we need to do? 

And I guess the corollary to this is that the abhorrence of the extension—only 33 in the House and none in the Senate—said, well, 

section 5 signals out some states and doesn’t single out others. My 

answer to that is that is based on the record of discrimination. 

And they also say that section 5 is unfair to voters, especially minority voters. And the whole purpose of what was done in 2005 and 

2006 in this very Subcommittee was to protect the right of minority 

voters not only to have themselves registered to vote and to allow 

themselves access to the polling place, but to have their votes 

counted and to be cast effectively so that they weren’t wasted. 

So I guess I would like to ask the witnesses, what do we need 

to do to fix this? Because I don’t have an answer. 

Mr. DERFNER. I will just agree with what I think Mr. Adegbile 

said. I think Congress has done its job. I think the Subcommittee 

has, in effect, let a little air in. 

In the area of the bailout. That may have been one area where 

it was somewhat difficult because many jurisdictions were not eligible. Now, under the Supreme Court’s interpretation, every jurisdiction is eligible, so if somebody thinks they ought not to have to be 

subject to the act, they have an—— 

Mr. SENSENBRENNER. But, Professor Derfner, one of the complaints that we heard with eligible jurisdiction is that they didn’t 

want to spend the money to try to get out from underneath the 

Voting Rights Act. And that was a legislative decision based upon 

the board or the city council or the county commissioner to decide 

how to spend the taxpayers’ money. And they must have decided 

that it wasn’t a good use of the taxpayers’ money. So how do we 

override that decision? 

Mr. DERFNER. I don’t think you have to override that, because it 

really isn’t very extensive. There have been a number of jurisdictions that have bailed out. The Supreme Court, in effect, gave a 

commercial in one of its footnotes to a lawyer who has been active. 

A number of other jurisdictions have made inquiries. It is not very 

expensive at all if you are really eligible. So I think Congress, 

frankly, ought to sit tight. 

Mr. SENSENBRENNER. Anybody else want to try this one? 

Mr. ADEGBILE. It is a difficult question. It is always a difficult 

question to determine how you persuade a justice that may be sitting in the middle of the Court about what the proper legislative 

course is. 

Mr. SENSENBRENNER. But if you would yield to me, give them too 

much to read? 

Mr. ADEGBILE. Indeed, that is a fair question, also, except I think 

that it was broken down in various contexts in the brief and others. 

LDF’s brief in the case pointed to more than six dozen examples 

not only of discrimination, but of repetitious violations in the same 

place to show that section 5 is still necessary. 
96 

I think that Congress did its job. And I think that Justice 

Scalia’s opinion in Lane, where he cautions that the Boerne test is 

a flabby test that invites the Supreme Court to come regularly in 

conflict with the legislative branch is something that the Court 

should revisit. 

There is a record here of ongoing discrimination. And whether or 

not Congress can fashion a different approach is something that we 

will have to consider. 

Mr. SENSENBRENNER. I thank you for your input on that. I 

haven’t lost any sleep at night based upon how the Court did interpret section 5 and what we did. You know, I do think we did our 

job. Maybe we overdid it. 

My time is up, and I yield back. 

Mr. DERFNER. I think you did your job superbly. 

Mr. NADLER. Thank you, on behalf of all of us. 

I now yield 5 minutes to the distinguished Chairman of the full 

Committee, Mr. Conyers. 

Excuse me, to the gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you. Thank you. Thank you, Mr. Chairman. 

And just following up on the gentleman from Wisconsin, when 

you have a constitutional remedy, the remedy has to be narrowly 

tailored. And the selection of the states to be covered, on that basis, 

the states got covered the old-fashioned way: They earned it. 

And it seems to me that if we did not have the selected covered 

states based on some rationale that they earned it starting off and 

they can get out if they no longer deserve it would put even more 

jeopardy on section 5, because it would not be narrowly tailored. 

Let me go into another area on discrimination cases. We cured 

the problem of the paycheck rule. The Supreme Court decided that 

the states that had had the paycheck rule, where the discrimination—the 180-day discrimination clock starts every time you issue 

a paycheck, as opposed to the absolutely absurd idea that if you 

can get past the 180 days, a group can come in and say, ‘‘We have 

been discriminated against,’’ and an employer could say, ‘‘Oh, yeah, 

we have been doing it for years. Get on back to work.’’ 

We cured that with statute. Are there other burdens of proof or 

statutory areas where we might be able to help things with statutory changes? 

Mr. FRANC ̧ OIS. I think there are a couple of areas, some that 

have already—some decisions that have already been issued and 

others that are potentially coming down the road. 

There are two that I mention. One involves the age—the ADA 

against age discrimination where the Court decided that, in Gross, 

in order to make a mixed-motive case, the plaintiff has to meet the 

burden of but-for age discrimination would have occurred. It is an 

extraordinarily high burden to meet. And if the burden is transferred from the age field into other areas, it is going to make it 

even more difficult to civil rights litigants. 

The other case that I think deserves worthwhile attention is obviously the one from last term involving Ashcroft v. Iqbal, where 

the Court essentially, even though they didn’t have to, just from 

the procedural posture of the case, simply eliminated in one fell 

swoop the supervisor liability in Bivens action. 

Mr. SCOTT. Say it again? 
97 

Mr. FRANC ̧ OIS. Its supervisor liability. In other words, if the 

agent commits a constitutional violation, is it the case that the supervisor might be liable if, in fact, they are new or should have 

known about it? And the Court essentially said no. 

The third area that hasn’t occurred yet, but I think is worthwhile 

to pay close attention to is actually a case that will be argued before the Supreme Court a week from today, Kenny A. v. Perdue, 

which will determine the standard for awarding attorney’s fees in 

civil rights litigation. 

The narrow question before the Court is whether or not a judge 

has discretion to grant an uphold adjustment to an attorney’s fee 

based on the extraordinary work and results the attorney has 

achieved for his or her client. The 11th Circuit said yes, but one 

of the judges who wrote the majority opinion essentially wrote a 

roadmap to the Supreme Court for how to say no. 

And even though most of us didn’t expect that the Court would 

have granted cert, the Court granted cert. And they have every 

reason to believe that the Court will say no, which will have a tremendous impact on every single fee-shifting statute for civil rights 

lawyers, which, again, will have a very big impact on civil rights 

litigation in this country. 

Mr. SCOTT. Did somebody else want to comment on other things 

we may have—— 

Mr. DERFNER. Let me just add a little—I agree 100 percent with 

Professor Franc ̧ois. And the interesting thing on that is that the 

Court seems to be backtracking even where it has already decided. 

In the issue of the attorney’s fees, Justice Powell wrote an opinion 

in the early 1980’s that specifically said there can be an upward 

adjustment for exceptional performance and exceptional results. So 

if Justice Powell and other conservative justices of that time believed that, then for this court to backtrack even from that point 

is very significant. 

And I would add one case of very—of great significance that the 

Congress might consider, and that is a case called Sandoval. 

Sandoval is a case a number of years ago in which the Supreme 

Court cut back or eliminated the ability to have a cause of action 

for a violation of a Federal regulation. And that has had a very significant effect in cutting back the ability for Congress to enforce its 

laws. 

Mr. SCOTT. Thank you. My time is expired. 

Mr. NADLER. The gentleman’s time is expired. 

I will just inform the panel that we are working on legislative 

remedies to Iqbal and Gross as we speak. 

The gentleman from Arizona, Mr. Franks, is recognized. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

I thank all of you for being here today. 

Mr. Adegbile, I know that your statement focuses on the VRA reauthorization, but the hearing topic today—and, indeed, the discussion—has been significantly more broad than that than just the 

voting issues. And I want to focus on this disparate impact theory 

for a moment. It has come under fire in recent years, as you know, 

and some even think the theory is wrong on principle and even 

should be discarded. And I admit to having some of my own ambivalence and misgivings and doubts. 
98 

I realize the disparate impact theory is traditionally applied in 

employment law, but it has also been found to be pervasive or persuasive by liberal members of the Supreme Court when policy 

harms a particular group in other areas, such as when a state administrator driver’s license exam is given in English only. 

So I want to throw out some facts here. And it is going to be on 

a—certainly a different topic here, but I would like to ask you to 

listen carefully for the disparate impact aspect, even if the issue 

itself is rather awkward. 

Some African-American groups have pointed out to me and other 

Members of Congress that the Federal Government’s subsidization 

of abortion has disparate impact on the Black community. And 

their evidence is essentially as follows. 

An estimated 80 percent of abortion clinics are located in Black 

or minority neighborhoods. According to the Alan Guttmacher Institute—that is, of course, the research arm for Planned Parenthood, the Nation’s largest abortion provider—approximately 50 percent of all Black unborn children are aborted, as compared to 20 

percent of White babies. 

And that means that 25 percent of the Black population—or 1 in 

4—is missing because they were aborted. And that creates a smaller population and certainly lessens the political power, the voting 

power of African-Americans. 

And, of course, they also cite the ill effects of abortion and the 

disparate impact on Black women because it is now, as you know, 

well established in dozens of studies worldwide that abortion is 

strongly linked to extreme preterm birth in subsequent pregnancies. After just one elective abortion, a woman is 2 to 12 times 

more likely to have an extreme preterm birth, and her baby is 129 

times more likely to have cerebral palsy than a full-term baby. 

And, of course, since the higher abortion rate for Black unborn 

children, it also equates to about four to five times the rate of extreme preterm for Black women and White women. And they are 

never given this information. 

And I know I have said enough about the evidence here. Getting 

to the disparate impact issue, the clinics that place themselves in 

the Black community that do these abortions are heavily subsidized by the Federal Government with taxpayer dollars. And 

many of these clinics were founded by the old American Eugenics 

Society. Some of these clinics were caught on tape taking money 

earmarked for Black babies abortion only, in other words, that they 

could only earmark this money to abort a Black child by racist donors. And after this expose, the Federal Government continued to 

increase its support of these clinics the following year. 

Now, my civil rights advocates argue very simply: Is the disparate impact theory applicable here, where we are talking not 

necessarily about the denial of a benefit, say, on hiring or a promotion to a job, but the infliction of a harm, where some surmise 

that the disproportionate harm of abortion in the Black community 

has even been intentional on some people’s parts? 

Is there a disproportionate or disparate impact here on the Black 

community? And why or why not? 

Mr. ADEGBILE. I, of course, have not studied those specific facts 

that you have laid out. My understanding of the disparate impact 
99 

standard is that it is a statutorily created approach in a number 

of different statutes. We see it in title VII. We see the effects test, 

which is similar, in section 5 of the Voting Rights Act. 

And in circumstances where Congress has recognized that there 

is a history of discrimination and that it is difficult to prove intentional discrimination, even though it may be happening because 

discriminators have become more sophisticated in their approach, 

then Congress has found that, in certain circumstances, disparate 

impact can play a very important role. And indeed, as I suggest, 

that has been the tradition in those two statutes that I have described. 

How it would work in this particular context, I don’t think that 

I am informed to say. 

Mr. FRANKS. Okay. I don’t want to ask anything above anyone’s 

pay grade here, but—well, Mr. Chairman, I would just suggest 

that—— 

Mr. NADLER. The gentleman’s time is expired. 

Mr. FRANKS. Thank you, sir. 

Mr. NADLER. Do you want to finish your statement? 

Mr. FRANC ̧ OIS. I would just suggest that approximately 50 percent of the Black community being aborted is a disproportionate 

and disparate impact. And I hope that it is considered by the Committee in the future. 

Mr. NADLER. Thank you. 

The gentleman from Georgia is recognized for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

How can the legislature improve upon the confirmation process 

for Federal judges, particularly U.S. Supreme Court justices, all of 

the Federal judges whom, by the way, have lifetime tenure? How 

can we make sure that they do not deceive and lie during the confirmation process about their true intentions? 

Mr. DERFNER. I think, in the olden days, judges weren’t questioned or nominees weren’t questioned. And when Felix Frankfurter was nominated, he said, ‘‘I am too busy teaching class,’’ so 

he didn’t come to a hearing. 

I don’t know that there is any way to do that. What I would suggest is possibly a different answer to your question, which is one 

of the things that the President is very interested in, and that is 

more diversity on the bench. What we have now are increasingly 

people who have worked only in the executive branch or people 

who are law professors or appellate court justices coming only from 

district courts. 

And I think the President has talked about greater diversity. 

And that would, among other things, open up the hearings, as well 

as diversify the bench. 

Mr. JOHNSON. Anyone else have an opinion on that question? 

Ms. LITHWICK. I would suggest, at this point, one should think 

in terms of damage control more than improving it, because I think 

the process is so toxic that it is bad for everybody. It has become 

a process that I don’t think reflects well on the people asking the 

questions. I don’t think it reflects well on the person answering the 

questions. And I think that Americans come away from it with a 

very distorted sense of what justices do. 
100 

And one suggestion is, I think, 4 days of that is just too much. 

And three rounds of questioning, when one asks the same question 

again and again, is too much, so things like very much limiting 

how much testimony there is. 

I don’t think there is any way to force nominees to say more than 

they absolutely have to say to get confirmed. I do think one thing 

is to change the conversation entirely. And whether you do that by 

having folks who don’t come off the bench, so you are not scrutinizing their cases, the minute you are in a situation where you are 

scrutinizing their cases, they can say, ‘‘Well, I can’t speak about 

something that is about to come before me. I can’t speak about 

something that I have already done. And I can’t speak about a hypothetical. But I can talk about the weather.’’ 

And then you get 4 days of that. So I think that, if you can 

change the conversation, that would require real ingenuity and 

imagination. 

But the other thing I think I would say is that the conversation 

that happens around confirmation hearings would be much improved, I think, if we could think through as a country what it is 

we want and value in justices in ways that are less—forgive me, 

but shallow than the conversation we are having now. 

And so it seems that if we could really talk in very aspirational 

ways about what the Court does and why it matters, what justices 

do, talking about an approach to the law rather than fixating on 

one or two or three cases, or one or two gotcha moments, I think 

the whole system would be absolutely enriched. 

And even if you didn’t get tremendously illuminating answers, I 

think that you would get answers that are at least interesting and 

thoughtful, rather than answers that are simply evasive. 

Mr. JOHNSON. Let me ask this question, because certainly President Obama set forth criteria that I certainly agree with. During 

the Bush years, we heard things like judges who are strict constructionist and judges who are judicial activist. Judicial activist 

judges were to be—they were not held in high esteem, whereas the 

strict constructionist, which I would say is probably evidenced 

mostly by Scalia and his worthy companion, you know, they would 

represent the strict construction philosophy. 

Have we kind of shifted directions—or not shifted directions, but 

shifted positions with the new Roberts Court? 

Mr. DERFNER. I don’t know what strict construction is, because 

no matter how you construe something, you have got value judgments. You make choices. And the notion—for example, if you 

strictly construe a statute of Congress and you say, ‘‘I am going to 

take only the words, and I am going to leave out the legislative history,’’ or what Chief Justice Warren in the Allen case caused the 

‘‘laudable goal,’’ well, you are cutting out half of what Congress told 

you to pay attention to. If that is strict construction, I think that 

is going to get it wrong. 

So strict construction is a value judgment like any other. And it 

is useless to pretend that you don’t make value judgments when 

you interpret statutes or the Constitution. 

Mr. NADLER. The gentleman’s time is expired. 

The gentlelady from Texas is recognized. 
101 

Ms. JACKSON LEE. Mr. Chairman, thank you very much for holding this hearing. 

And let me express my appreciation for the witnesses who are 

here and my outright dismay for where we are today. 

I respect the three branches of government and respect the independence of the Supreme Court. That is why we adhere to that 

constitutional premise of three branches of government and pride 

ourselves in having a working solution. 

We have not stormed the Supreme Court to physically remove 

any justices because we disagree. We have respected decisions of 

which we have agreed and disagreed. 

I think one of the most shocking experiences that I have had in 

my lifetime, besides a litany of civil rights cases pre-Warren Court, 

was, of course, the 2000 decision in Bush v. Gore, which I felt was 

a complete aversion to a conservative court. And now it looks as 

if this is penetrating our whole system of government. 

So let me just pose these three cases. And if you can—as many 

people as we can get to, to quickly comment. And you may have 

commented on these already. 

The Ricci v. DeStefano case, those of us who support our good 

friends in law enforcement and fire departments and appreciate 

their service, we do know that, across America, there are these departments that are monolithic in diversity, both in terms of women 

and in terms of race. 

The decision to overturn the decision that was led by then-Judge 

Sotomayor, if you would comment on where we are in those kinds 

of cases and the undermining of the title VII cases. Age discrimination, Gross v. FBL Financial Services, had the—it seemingly had 

the burden of proving that age was the but-for for the cause of the 

employment decision. 

And then, lastly, equal protection, the school desegregation case, 

Community Schools v. Seattle School District, the Court struck 

down voluntary school integration plans. In some of our communities, that includes the issue of magnet schools and other ways of 

exchanging students to make sure that we are diverse. 

Let me yield to you and just quickly say, where are we with that 

kind of dismantling from age to title VII and to equal protection? 

Will we start with the first witness here? I am sorry. 

Mr. DERFNER. You have picked out on some very interesting 

cases. And I will just say a couple of things. 

The Ricci case, it was an unfortunate combination of situations. 

But I—one of the things the Ricci case did was basically to undermine a case called Griggs v. Duke Power Company, which was written by Chief Justice Burger, back in the day when Chief Justice 

Burger was thought of as the most conservative justice we had had 

in a long time. 

Chief Justice Burger recognized the reality of the time and set 

up a standard in which it was a meaningful opportunity to prove 

discrimination. And what Ricci winds up with, what Ricci winds up 

with is—I am not going to deal with the doctrines, which are pretty 

complicated—what Ricci winds up with is that the fundamental 

way to choose a firefighter is by a written paper-and-pencil test. 

I guarantee you that all of us here at this table and all of you 

up on the panel could pass those tests and could be at the head 
102 

of that list. And, God forbid, if New Haven or anybody else hired 

us as firefighters. A paper-and-pencil test, which is what that case 

sort of—— 

Ms. JACKSON LEE. May I get the others to quickly jump in? Our 

time is going. I know the Chairman and I both have to—can you 

jump in? And you can pick any case and if you would just add, do 

we need a legislative fix? Are we now going to have to have a process of legislatingly overturning the Supreme Court? If you could 

quickly—next witness? 

Mr. FRANC ̧ OIS. I did mention earlier—— 

Ms. JACKSON LEE. Turn your—— 

Mr. FRANC ̧ OIS. I did mention earlier that, in fact, we do need a 

fix for Gross. With respect to the other two cases that you mentioned, I would suggest that even though they cover very different 

areas, they should be sort of together, Ricci and the Seattle School 

District cases, because at the bottom of these cases lies not with 

a legislative problem, but rather the view of equal protection that 

the Court has adopted that essentially says the meaning of equal 

protection is pure race neutrality. 

The reason why this is a fundamentally important argument is 

because that was precisely the argument that—subsequent to 

Brown, that had it been accepted would never have resulted in desegregation. 

So both Ricci and the Seattle School District case are less susceptible, really, in my view to, let’s say, fixes, because they really are 

evidence of—— 

Ms. JACKSON LEE. Subject to legislative fixes? 

Mr. FRANC ̧ OIS. Yes—— 

Ms. JACKSON LEE. Let me get the next gentleman before the 

light. 

Mr. ADEGBILE. I agree—— 

Ms. JACKSON LEE. All right. 

Mr. ADEGBILE [continuing]. That the idea of equal protection, 

as—that measures to address discrimination should not be equivalent to—made equivalent the idea of discrimination itself. And it is 

noteworthy that in the parents involved case, Louisville had long 

been under a desegregation order and decided of its own volition 

that voluntary desegregation was the way to go after a long experience of de jure desegregation. 

Mr. NADLER. Thank you. The gentlewoman’s time is expired. 

We have 1 minute and 30 seconds remaining in a 15-minute 

vote, which means about 3 minutes. The Committee will have to 

stand in recess. There are five votes on the floor, 4-or 5-minute 

votes after this one finishes. 

So probably we will reconvene right after the votes, probably in 

about half an hour. We will have a second round of questioning at 

that time. I thank the witnesses and everyone else. 

And the Committee will now stand in recess. 

[Recess.] 

Mr. CONYERS. [Presiding.] The Committee will come to order. 

And I thank the witnesses for their indulgence. The floor action 

lasted longer than any of us expected. 

Could we continue our conversation? What I would like you to be 

able to put on the record, to the extent that you would like to, is 
103 

your reactions to each other’s comments, I mean, because all four 

of you come from perfectly different points of experience and knowledge and persuasion. And so what I would like to do is, in the 

friendliest way that we do things in Judiciary Committee, have a 

candid conversation about each other’s points of view. 

You don’t all have to start at the same time. You don’t have to 

start with Mr. Derfner first, Ms. Lithwick. As a matter of fact, you 

would probably be the best one to start off. 

Ms. LITHWICK. Then I shall. Thank you very much. 

I think that one unifying theme here is that there has been a 

tendency to chip away, whether explicitly or implicitly, at civil 

rights in the last two terms. And I think it might be worth at least 

putting on the record the notion that every year a case comes down 

that shocks all of us in the media, we didn’t know Lilly Ledbetter 

was going to become Lilly Ledbetter until 6 months after there was 

a blowback, a public blowback. We didn’t know the Kelo case was 

going to be the Kelo case. We didn’t know that Gross was going to 

be Gross. 

And I think one thing that is useful to say here, at least in connecting what my colleagues on the panel have said and what I 

have said, is that I think the Supreme Court is exquisitely sensitive to public opinion. I think that it is exquisitely sensitive to the 

moments when it is perceived as making a mistake. 

Mr. CONYERS. We have never noticed that before. 

Ms. LITHWICK. Well, I watched oral argument in the Redding 

case, in the strip-search case last year. And if you walked out of 

that case after oral argument, it was 7-2, I think, for the school district. And a few things happened. A few people wrote strongly. 

There was an enormous public outcry. And I think that it profoundly shaped the way that the decision ultimately came down. 

So I just think it is important to connect out what we are saying 

here on this panel to the question of, how is it that a case becomes 

important to the American public? How do we get a Lilly 

Ledbetter? How do we get a Gross? And I think that piece of it is 

really critical, because I think the Court is more sensitive than we 

would expect to doing something that is later perceived as having 

really truly wronged a plaintiff. 

Mr. CONYERS. But you are the one that has raised the question 

more specifically than anyone else here today about the inadequacy 

of the media, in terms of bringing to the attention of the general 

public the importance and significance of what the Court does. 

Ms. LITHWICK. I agree. And I am here to say mea culpa, but I 

am also here to say I think that these cases surprised the media, 

too. I think the media was surprised by the outcry over Ledbetter. 

I think the media was surprised by the outcry after Kelo. And so 

the question is, why are we following that conversation and not— 

it? 

Mr. CONYERS. Well, I am surprised that you are surprised, but 

so what? I mean, what has that got to do with how we make the 

Court better and more sensitive to our relationship? And what 

about these three male witnesses that came here with you this 

morning? You were going to—you were going to tell me what you 

agreed with about what they said and any reservations you might 

have had. 
104 

Ms. LITHWICK. What I agree with about what they said? 

Mr. CONYERS. Yes. And any reservations you might have had 

about what they said. 

Ms. LITHWICK. I agree absolutely with the notion that Congress 

is creating records that are fundamentally sound and for the Court 

to question the record is ultimately the Court’s problem, I think. 

And I agree with—I very much agree with the idea that they 

have all put forward, that this is happening in large ways and in 

small ways, but it is absolutely happening. 

Mr. CONYERS. Well, I mean, look, as far as males and females 

are concerned, this is an unbalanced panel. This is an opportunity 

that is important for you to give some free advice to your panelists. 

Ms. LITHWICK. Well, if I was going to give free advice about gender, which I only do at home to my husband, I would say that I 

think that the conversation around gender that we had over Justice Sotomayor and the need for gender balance on the Court was 

one of the most impoverished national conversations we have ever 

had. And I thought it happened in stereotypes and cliches. I 

thought it was really pernicious and it played to the worst of the 

ways we talk about gender. 

I think that it is clear that we need gender balance, not just at 

the Supreme Court, but in every level of the judiciary. I am not advising my colleagues here. I think they probably feel the same way. 

But I do think that, for the next two rounds of vacancies of the 

Court, if we are going to talk about race and gender as a country, 

we need to do it in ways that transcend the just horrible stereotypes that were kicked up over this confirmation hearing. 

Mr. CONYERS. Well, unfortunately, it rebuilt the level that we are 

actually at. 

Ms. LITHWICK. Yes and no. My own—— 

Mr. CONYERS. Oh, you think we are really better than that? 

Ms. LITHWICK. I think that a lot of us are better than that. I 

think that in some ways that was a race to the bottom. 

I will tell you this, purely anecdotally. I sat through the 

Sotomayor confirmation hearings. And what I saw happening in 

front of me, the conversation about whether she is a bully judge, 

the conversation about whether she is too rude to lawyers that was 

so fraught with gender overtones, and then I would turn behind me 

and see the line of people trying to get into the chamber, and it 

was a line of people of all colors and all races and all genders. And 

that was the future. And they were there because they were so excited to see a Hispanic woman on the Court. 

And it seemed to me that, as a purely aspirational matter, that 

visual of the room behind me filled volumes. 

Mr. CONYERS. Well, Trent Franks, I would have been one of 

those excited people at the Court that day myself, except now I 

have learned that she is far more conservative on some matters 

that I—that I didn’t know about when I was busy being excited 

about her nomination and confirmation. 

Mr. FRANKS. From your lips to God’s ears, Mr. Chairman. 

Mr. CONYERS. And now I am saying, ‘‘She did? She ruled like 

that?’’ But, hey, nobody is perfect. 

Mr. ADEGBILE. I guess I will say a word about the importance of 

these civil rights decisions and, in particular, one of the things that 
105 

concerns me a bit about the Supreme Court’s handling of some of 

these cases. 

The question at the end of the day is, how have we achieved the 

progress that we have made? But it doesn’t stop there, because 

part of the question is, how can we continue on the path of 

progress? And that is a very important second question, and I believe that was the question that this body asked itself in 2006 

when it reauthorized the Voting Rights Act. 

It took note of the progress that we had made, and that progress 

is undeniable. The chief justice himself, in the decision in the MUD 

case, wrote the historic accomplishments of the VRA are undeniable. 

But I think that there is another lesson that history offers to us. 

It gives a gift. And the gift that history gives us is it provides us 

with the ability not to repeat some of the most troubling chapters 

if we study it. 

I am not here today to say that the United States is going to 

turn back to Jim Crow. But in light of the record that this body 

established on the Voting Rights Act, it is clear that we have not 

uprooted all of the entrenched discrimination in the covered jurisdictions. 

Mr. CONYERS. And we are making it more difficult to move forward. 

Mr. ADEGBILE. And that, I think, at the end of the day, is the 

important question: Why would Congress, in the face of continuing 

discrimination, why would we read the Constitution to require Congress to stand down? 

There is nothing in the Constitution that says that Congress’s 

enforcement powers have an expiration date. If there are continuing problems, my view is that the Constitution allows Congress 

to continue to act to address them. There can be serious discussions about how Congress approaches its—discharging its duty, but 

on the record that Congress assembled of repetitious violations that 

were concentrated in particular parts of the country, with greater 

frequency and intensity than other parts of the country, I think 

that it is a reasonable judgment and a constitutionally sound one 

for Congress to stay the course. 

And so the idea that we would over-commit to our progress without taking note of the challenges that still exist, I think, is really 

telling half a story. And that is why I think it is so important for 

the Constitution to continue to be a conversation in which both the 

Congress and the Supreme Court and, of course, the executive, everybody has a role to play. 

And the thing about the Voting Rights Act is that, for many generations, the three branches of government have come together 

with a unique understanding of how it has charted us on a path 

toward progress. And it would be my hope that, in future cases, the 

Court would not shrink from that important commitment. 

Mr. CONYERS. Mr. Franc ̧ois? 

Mr. FRANC ̧ OIS. Thank you, Mr. Chairman. 

One overarching theme that have run through this proceeding 

this morning is the idea of what sort of record Congress places before the Court and what standard is the Court going to use in evaluating the adequacy of that record. 
106 

I do agree with my colleagues who have commented that Congress has done a superb job over the years in—and placing a record 

before the Court. But the one thing that I also would bring to your 

attention for the record is a different point, but somewhat related. 

When one looks at these civil rights cases—South Carolina v. 

Katzenbach, for example, with respect to the VRA—going all the 

way to, say, Tennessee v. Lane, regarding the ADA, many of the 

findings that the Court relied upon and gave a great deal of credibility to were findings that actually came out of the United States 

Civil Rights Commission. 

For example, in Tennessee v. Lane, the Court relied almost exclusively on a 1983 study by the commission having to do with access 

for disabled individuals. However, what has occurred over the last 

3 years is that it is virtually impossible for Congress or the Court 

to actually go to that agency, which as obscure as it may be to 

some actually has a great deal to do with establishing records with 

civil rights, because the agency has essentially stopped functioning. 

Now, I will concede that I have a bias, because I actually served 

as the lead agency reviewer during the Obama transition team in 

looking at the agency and making recommendations for it. But 

what is very disconcerting, I think, deserves some measure of attention from the Committee is that, if the Committee were to decide, for example, that new civil rights legislation were needed with 

respect to women or gays and lesbians, with respect to sexual orientation discrimination or gender identity discrimination, it virtually would be impossible nowadays to go to the commission for 

such findings, where essentially for close to—beginning in 1954, 

this is precisely the place where you used to go. 

And I think, if, in fact, much of the discussion today is going to 

be based on the idea that—to borrow my colleague’s analogy, that 

the Court now requires Congress to do its homework, but also 

grades it not on a pass-fail basis, but on A, B, C, D, and you have 

to get an A for the Court to uphold your statute, then it does a disservice to all of us who are interested in civil rights for us to completely lose that one part of the government that, in fact, is supposed to be doing our homework for us, namely the Commission on 

Civil Rights. 

Mr. CONYERS. Is EEOC the period you referred to during the 

chairmanship of Mary Frances Berry? 

Mr. FRANC ̧ OIS. The civil rights commission—yes, during the 

chairmanship of Chairman Mary Frances Berry, in—there were 

some problems with the commission, but it still continued to function. As I said before, Tennessee v. Lane, which was decided recently, was based on a 1983 report from the commission. 

But it is fair to say, without singling out anyone, that in the last 

at least 10 years, if not more, the agency has stopped producing 

this sort of report. 

Mr. CONYERS. Professor Derfner? 

Mr. DERFNER. This has been an extraordinary hearing. I have 

learned a lot myself from my colleagues and from the Committee 

Members. I think the important thing that I take away after all of 

this is that Congress is still in the business of enforcing civil rights. 

And that is important, and it is different from the last time many 

years ago that we had a situation like this. 
107 

In the 1860’s and 1870’s, after the 13th, 14th and 15th amendments were passed, Congress passed a series of civil rights and enforcement acts. The Supreme Court struck them down starting in 

1876 and then going on increasingly and kept on doing it. 

By the time the Supreme Court started doing that, Congress’s 

will to come back was gone. And so when the Supreme Court—— 

Mr. CONYERS. What about the Compromise of 1877? 

Mr. DERFNER. Exactly. Well, the Supreme Court started striking 

laws down even before the Compromise, but you are right. The 

Compromise began it, and then Congress didn’t pass any more civil 

rights laws. Congress did not respond to the Supreme Court’s negative decisions at that time. Then we went to Jim Crow, disenfranchisement, violence, fraud, lynching, et cetera, I mean, the sorriest 

chapter of our history. 

We have something very different now, because Congress got 

back into the business of passing civil rights laws in 1957, then 

1960, 1964, 1965, and Congress has stayed in that business. Not 

only has it seen that the job is not done; it has recognized that 

more people need the help. 

While race is our Nation’s most serious problem—it has always 

been—we also need to deal with issues of gender, of handicap, of 

age, of sexual orientation, of nationality, a whole range of things. 

Congress has stayed in the business. And as the Supreme Court 

has turned back over the years from the days when the Court was 

in sync with Congress, Congress has stayed on the job. That, to me, 

is an incredibly important thing. 

It is the one thing that gives us hope that we will come through 

this and we will get back to a time—we will get back to a time 

when the Court will be in sync. Because make no mistake about 

it: The fact that Congress, the political branch, stays in the game 

and stays in the business shows us that that is where the Nation 

is. And it is the Supreme Court, frankly and sadly, that I think is 

out of step with the Nation. And that can’t go on very long. Congress has shown the determination. It is exciting that it does so. 

And I also look back—let me just say one last thing, and I will 

stop—the way I see it, this country has had three new births of 

freedom. President Lincoln talked about a new birth of freedom 

when he gave the Gettysburg Address. We had a birth of freedom 

when we had the Revolution, and then we killed it with a Constitution that institutionalized and protected slavery. We had a new 

birth of freedom in the Civil War and Emancipation and then Reconstruction, and that was killed by people who were determined 

that we would not have equality. 

Starting with the early days of the civil rights movement, Brown 

v. Board of Education, the work of Thurgood Marshall, the work 

of Mr. Houston, and Judge Hasty, the first Federal circuit judge 

who was Black. It is really our third try at bringing freedom and 

equality to this Nation. And the fact that Congress has stayed on 

the job, both parties, year after year, is the most encouraging and 

hopeful sign that I have ever seen. 

Mr. CONYERS. Before I turn this over to my colleague, Trent 

Franks of Arizona, Ms. Lithwick, did you have a comment to make 

on this? 
108 

Ms. LITHWICK. I couldn’t improve on what Professor Derfner just 

said if I tried. 

Mr. CONYERS. Trent? 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, the main reason I came back was just to give you 

the opportunity to put those things on the record you wanted to, 

so I don’t have any questions. 

But I guess I would be remiss if I didn’t just express the fact that 

I was touched by Mr. Derfner’s remarks. And, you know, sometimes I guess we forget that America was built on a—kind of a different premise than other nations. You know, other nations often 

sought to put individuals or certain people in charge of things, and 

we did a new experiment that we would take away government’s 

power and we would empower the individual, because we held the 

truth that all of us were God’s children and deserve to be—have 

our lives protected, our freedom protected, and our property, and, 

you know, the pursuit of our dreams. 

And I know that there is a great deal of differences on this Committee over how to do that sometimes. And I realize that it takes 

society a while to develop certain ideas. And I am reminded that 

there was a time when Congress outlawed petitions—for a period 

of 8 years, outlawed petitions against slavery. In other words, we 

didn’t want to even be lobbied on that issue, because that was a 

set deal. In other words—we decided, by God, we are going to have 

slavery, and that was it, and we weren’t going to listen to any of 

these wacko abolitionists. 

And I know sometimes I frustrate this Committee by my constant return to what I believe the civil rights issue of the day is, 

and that is the protection of unborn children, because I believe 

that, you know, the same court that said Dred Scott was not a 

human being said that the unborn was not a human being. And it 

took time for us to develop in a different way. 

But by the grace of God, we did. And Congress played a big role 

in that. Congress was the first body to say that we are going to 

have civil rights, finally woke up and said—you know, the people 

woke up. And the Courts struck those early ones down. We forget. 

You know, they struck those early civil rights laws down. 

Finally, the Court woke up and joined the rest of us and said, 

okay, we are wrong. And we finally put aside this tragedy of slavery. And the issue that I mentioned today—again, I know that it 

frustrates people. I don’t mean to do it to frustrate. I am a likable 

guy. I just don’t seem like it sometimes, you know? 

But it is true today that the most basic civil right of all is the 

right to live. Without that, the others don’t really have a lot of 

meaning. 

And today, one of the disparate realities is that half of all Black 

children—half of all Black children—are killed by abortion on demand. And I don’t know if I am the only one in this room that that 

hits me as hard as it does, but I just think that is one of the most 

tragic realities that we could face when we talk about civil rights. 

Mr. CONYERS. Do you have a reference for that statistic? 

Mr. FRANKS. Sure, Planned Parenthood, Alan Guttmacher Institute. That is their statistics. 

Mr. CONYERS. Okay. 
109 

Mr. FRANKS. I hope you check it out. I hope you say, ‘‘Listen’’— 

I hope you come back to this Committee and say, ‘‘You know, that 

guy is a lunatic. We can prove it.’’ I pray that the Chairman—I 

challenge the Chairman to—I say that not to challenge you, but 

just to—that these are sincere perspectives. 

And I am just hoping that the day comes when Congress and the 

people of the United States will finally say, you know what? No 

matter whether you are Black or you are White or you are rich or 

you are poor or you are unborn or you are—or you are not or you 

are weak or strong, no matter who you are, you are part of the 

human family, and we are going to get together and we are going 

to protect each other in these brief days of life—— 

Mr. CONYERS [continuing]. Jurisdiction to hold hearings on this 

subject matter. 

Mr. FRANKS. Well, I have a bill, Mr. Chairman. It simply is 

called the Prenatal Nondiscrimination Act. And it simply says that 

you cannot discriminate against an unborn child by subjecting 

them to an abortion on the basis of race or sex. That is what it 

does. 

Mr. CONYERS. Well, why don’t you get a hearing on it? 

Mr. FRANKS. Would you give me a hearing on it? 

Mr. CONYERS. Well, I haven’t heard of it before just now. 

Mr. FRANKS. Well, I guess I would sincerely if you—if you are 

open to giving me a hearing on it, I would love to present it. And 

regardless of what the Committee does with it, just helping it be 

understood I think would be something that maybe the generation 

will have a panel there and they will say, ‘‘You know what? There 

was a long time ago when we were taking the lives of half of all 

Black children, and we decided that wasn’t the way to go, and we 

changed it. And, sure, we had disagreements over it, but we 

changed it.’’ 

And I would welcome the opportunity for a hearing like that. 

Would you be open to that, Mr. Chairman? 

Mr. CONYERS. Could I see the bill first? 

Mr. FRANKS. Absolutely. I will bring you the bill, Mr. Chairman. 

Mr. CONYERS. Well, I can look it up, now that you have told me 

about it. 

Mr. FRANKS. Okay. It is the Prenatal Nondiscrimination Act. We 

have forwarded it to your office before. 

Mr. CONYERS. What is the bill number? 

Mr. FRANKS. I think—I apologize. I don’t remember the bill number, but we will get it. 

Mr. CONYERS. Oh, that is all right. Don’t worry about it. 

Mr. FRANKS. But in any case, I just want to thank the panel here 

and thank the Chairman. The Chairman is a gentleman. And forgive me for the—sort of the—I don’t know what it was, the—just 

the discussion, but I appreciate all of you, because I believe that 

one thing we hold in common in this room is that we really do desire to see the imago dei, the image of God, in every human being 

respected and protected. And I just hope we figure out who we all 

are. 

Thank you, sir. 

Mr. CONYERS. Thank you very much. 

The distinguished gentleman from North Carolina, Mel Watt? 
110 

Mr. WATT. Thank you, Mr. Chairman. 

I know that I have come in on the end of the hearing, and I will 

be brief, because I know that some of the witnesses have a deadline 

for being out of here. And as do I. 

I was fortunate to be here for the opening statements and came 

back for several different reasons and just got one added to me, so 

let me add my response to Mr. Franks first. 

It seems to me that those who make so much protestation about 

the unborn would have a lot more credibility if they paid half as 

much attention to those who are out here walking around and protecting their rights, would add to the credibility that you have for 

those that I haven’t seen. 

I see these people every day being discriminated against. And I 

guess I have more immediacy about that. That is not why I came 

back, obviously, because I didn’t know what Mr. Franks was going 

to say. 

I came back for actually five other reasons, number one, to express my tremendous thanks to Mr. Sensenbrenner for the content 

of his opening statement and for the tremendous work that he did 

to help us reauthorize the Voting Rights Act extension. 

Number two, to thank Mr. Adegbile—I always have to concentrate on the pronuniciation of his name—for the tremendous job 

he did in defending our congressional record that we developed in 

the United States Supreme Court, and since that extension has 

been under attack, and to encourage him in the process to keep 

moving forward on that front. 

And to say that my initial reaction when I heard about this hearing was that I was somewhat reluctant, because I thought we were 

going to just beat up on the Court, and having sat through multiple 

terms in which the other side was in control of this Committee and 

seen that happen, I didn’t think that was a very constructive way 

to approach this. 

But this has turned out to be a very constructive series of witnesses, and the testimony and the questioning, I think, has been 

constructive to the extent that I have heard it. 

Two substantive issues, now that I have gotten all of that out of 

the way, the protocol stuff. And I apologize if somebody has already 

addressed this. I was struck by what Ms. Lithwick had to say in 

her testimony. And I am wondering what kinds of things we might 

be able to do legislatively to deal with this whole attack on standing and the prerogatives of the Court versus—I mean, are there 

some substantive things that we can be doing? 

We thought we were doing the right things by developing, what, 

a 16,000-page record to substantiate the need for the extension of 

the Voting Rights Act, because that is what the Court had told us. 

They didn’t say we required 16,000 pages. There is a big disparity 

as some people—as Mr. Sensenbrenner, I think, said in his opening 

statement—about what is required by the Supreme Court. 

But we understood the imperative that we had to have hearings 

and make a record that this was an extraordinary kind of statute 

that required legislative findings and continuing discrimination. 

And we did it in methodical, painstaking hearings and recordbuilding. 
111 

And I was with the Chairman and the Ranking Member when 

they went to the Senate side and dumped our whole record into the 

Senate record so that we could supplement their record. We did 

that because we thought the Senate hadn’t done enough to build 

their own record, and we thought sharing our record with them 

would be seen by the Supreme Court as a salutary thing. And to 

have ourselves second-guessed—but that obviously is not enough. 

What can we do on the standing thing, Debo, Professors? What 

can we do on—because I think, you know, if they won’t let people 

in the court, and the district courts have started to just dismiss a 

bunch of cases before they even—you know, you almost got to prove 

your case in your pleadings now, I understand, before you can even 

survive a motion to dismiss. Is there something we can do legislatively to address that? 

Mr. ADEGBILE. The congressman has raised a very important 

question about whether the courts remain open for business for 

civil rights plaintiffs and others who have legitimate grievances 

that traditionally we have been able to resolve through a deliberative process of litigation, which does not presume a result, but requires parties to conduct careful investigation and avail themselves 

of discovery and then meet burdens that have been proscribed by 

statute and, in some cases, by the Court, to prevail. 

There are a number of circumstances, some of which have been 

described today, where there are answers that are, in my view, 

subject to some legislative response. One of the issues in play in 

the recent Iqbal decision, in addition to the important Bivens point 

of which my colleague here, Aderson Franc ̧ois, spoke, is the question of the pleading standard that you have alluded to. 

For a long time, plaintiffs were allowed to come forward making 

allegations, and they were allowed to have an opportunity to test 

those allegations through discovery. To say—— 

Mr. WATT. I won’t have you belabor that. I apologized upfront, 

because I hadn’t heard the testimony. I will go back and read the 

record. Apparently you all have addressed this. 

Let me raise my final point with you, Debo. I actually think 

that—I mean, the Court in the MUD case sidestepped this issue 

and kicked it down the road. Maybe we will get some new justices, 

which I think is our ultimate answer here. 

But I am as troubled—more troubled—as much troubled by the 

earlier case in the voting rights area, because once again, we had 

been led to believe that this being a transitional remedy, the Voting Rights Act, that these kind of transition districts that didn’t require 50 percent minorities to have any recognition under the Voting Rights Act was an important step, it seemed to us, toward exactly what the Supreme Court had said was desirable. 

You know, for the Court to go back now and say that we only 

protect you if you have got 50 percent-plus 1 minorities seems to 

me to be a substantial departure from that whole line of jurisprudence. Am I misreading this? Help me feel better, if you can, but 

don’t—I mean, tell me the truth. 

Mr. ADEGBILE. I will try and discharge my oath to tell you the 

truth. The case that the congressman is referring to is Bartlett v. 

Strickland. It was an interpretation of section 2 of the Voting 

Rights Act. In that case, the Supreme Court answered a question 
112 

that it had dodged in four or five earlier cases about whether or 

not a claim could lie or a defense could be asserted with the creation of a minority opportunity district when the population was 

below 50 percent. 

The court found that—answered that question in the negative, 

that it must be 50 percent or more in order to be cognizable under 

section 2 of the Voting Rights Act. 

And I think the significance operates in two contexts. One is the 

claims that can be brought in—following the next redistricting 

cycle, where there are opportunities, because of crossover voting, 

for minority groups to combine with White voters to elect candidates of choice in circumstances where polarized voting persists. 

But the context of the North Carolina case presents the more significant question, I feel, and that is the circumstance of what is 

going to happen in the legislative process of existing opportunity 

districts that are below 50 percent, and may—and now have less 

protection after this ruling, and may be diluted in the legislative 

process. Those voters may be spread out in ways—— 

Mr. WATT. Such as the congressional district that I represent, 

which I thought the Supreme Court had represented to me was a 

desirable kind of district, because I represent majority Whites, and 

the percentage of minorities in my district were designed to make 

it possible for voters to elect somebody of choice in a polarized situation that is not as polarized as some other parts of the state. 

But now I have got to have a 50 percent minority district to get 

it recognized under the Voting Rights Act? That seems to me to be 

so counterproductive to the whole purposes that we were moving 

towards. 

Mr. ADEGBILE. The congressman is absolutely right, that there— 

that one would think that part of where we are trying to go with 

all of these voting remedies is that polarization levels decline and 

that we are able to have voters of all races vote based on the merits 

of the candidates and not pull the lever based on a candidate’s 

race, which is part of the problem and part of the reason why we 

have voting rights protections. 

I would say that there are a cluster of important issues to think 

about with the section 2 decision. The first is that, in section 5 covered jurisdictions, there is additional protection against both dilution—because the retrogression standard should protect those jurisdictions. There are many jurisdictions that are not section 5 covered. Indeed, most of them are not section 5 covered. So how that 

plays out is an open question. 

Additionally, I think the thing that the Court was struggling 

with is an administrable rule about, once you decide that 50 percent majority-minority is not the cutoff, what is the guidance that 

could be offered to the lower courts about what is the range in 

which it is reasonable to bring a claim or assert a defense, where 

you have a coalition—— 

Mr. WATT. Could that be a legislative thing or—— 

Mr. ADEGBILE. I think it deserves legislative study. 

Mr. WATT. Okay. All right. 

Mr. ADEGBILE. And if Congress can fashion a rule that makes 

sense, then I think it should be acted upon. The court has—in the 

LULAC case—said that influence districts—and here I distinguish 
113 

influence districts from an opportunity districts, the districts at 

issue in the Bartlett case—an influence district is where the minority population is so low that really they are never going to be able 

to elect—come close to electing a candidate of choice. The amount 

of crossover would overwhelm the amount of the minority population such that the majority population would be picking the candidate and the minority population would just be acting in conformity with the majority preference. 

But in this mid range, where there is a substantial minority population, I think that there is something to study, but I think the 

Court was a little bit uneasy about what the workable standard 

would be. And an answer to that question would need to be formulated prior to any legislative enactment. 

Mr. WATT. Mr. Chairman, I will pick his brain privately about 

what that legislative response might be. And I won’t burden the 

rest of the panel or the Members with it or the staff. 

But I appreciate the Chairman having a very constructive hearing, I think. And I certainly appreciate all of the witnesses being 

here. And I apologize for not being able to be here the entire time. 

We are dealing with an issue that is near and dear to the Chairman’s heart in the Financial Services Committee, the whole interchange fee question that the Chairman tried to deal with in this 

Committee last term we are now having hearings about in Financial Services, so I have been kind of pulled in two directions today. 

I yield back. 

Mr. CONYERS. Thank you. 

Professor Derfner, did you want to close down this conversation? 

Mr. DERFNER. I guess I would add to what Debo said. I think 

there are some legislative things that can be done. There is an old 

Supreme—not old—there is a Supreme Court case from back in the 

1960’s that says Congress can create standing by creating rights in 

the statutes it passes. That has never been overruled, although 

maybe it will happen soon. 

And I think that, in general, Congress has the opportunity to do 

things. It has done a lot of things. The things it has done has been 

very—it has done have been very salutary. And I think Congress 

should just keep on working the way it has been working, dedicated itself to the things it has dedicated itself to, and we will come 

through. 

Mr. CONYERS. Customarily, we let the lady panelist get the last 

word, gentlemen. 

Ms. LITHWICK. I would just very much thank the Committee for 

all the tireless work it has done in this area and really second Professor Derfner’s comments, which are I think that the mere fact 

that Congress is not just in the game, but very, very much in the 

game is really, I think, the light at the end of this tunnel. Thank 

you so much for hearing us today. 

Mr. CONYERS. We thank you all for your time. And we are going 

to study this record carefully. And if you have any writings or additional comments you would like to submit, please do. 

Thank you all very much. 

[Whereupon, at 12:25 p.m., the Subcommittee was adjourned.] 

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