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4 | The Congressional Black Caucus: Pushing Constitutional Boundaries “The Court is a good mirror, an excellent mirror . . . of the struggles of dominant forces outside of the Court.” —Felix Frankfurter The CBC Engaging the Supreme Court as Amicus Curiae in Minority Voting Rights Litigation Chapter 3 recounted the efforts of the Congressional Black Caucus (CBC) to strengthen the Voting Rights Act (VRA) against new and continuing electoral problems. In so doing, the CBC has also sought to buttress the act against what it perceives as the Supreme Court majority’s retrogressive minority voting rights jurisprudence since the early 1990s. Whereas that chapter looked at the caucus in its legislative capacity, here I examine a little -discussed aspect of the CBC’s substantive representation of its constituents : its extralegislative efforts as amicus curiae in key voting rights cases. This examination analyzes the amicus briefs the caucus submitted to the Court in Rodgers v. Lodge, Miller v. Johnson, U.S. v. Hays, Shaw v. Hunt, and Northwest Austin Municipal Utility District Number 1 v. Holder.1 In submitting such briefs, the caucus acts akin to a civil rights interest group. Congressional caucuses are not usually considered interest groups. However, in ‹ling amicus briefs on behalf of voters whose political power is affected by Supreme Court decisions, the CBC satis‹es much of the criteria for interest groups while simultaneously performing an important representative function.2 The analysis of these briefs focuses on the changing substance and tone of the caucus’s arguments. In particular, it considers how the Court and the caucus have in›uenced each other. It is easy to assume that the in›uence would ›ow only from the Court to the caucus, especially since the Court so rarely mentions amicus briefs in its opinions. 102 However, the CBC may in›uence the Court, albeit indirectly, by insisting that a race-conscious approach to redistricting cases and minority voting rights falls squarely within Congress’s intent for both the Fourteenth Amendment and the VRA. The efforts of the CBC and its fellow legislators to strengthen theVRA in 1982 in a way that fostered the creation of safe black districts also fostered a paradox of race and representation. On the one hand, the increase in majority -minority districts drawn after the 1990 reapportionments led to a signi‹cant increase in the number of blacks and other minorities elected to the House, thus enhancing the diversity of the legislative branch to a degree unprecedented since the Reconstruction era. On the other hand, white voters have repeatedly challenged the districting that enhanced black political power, and the Supreme Court has repeatedly minimized states’ use of race to enhance such power. Thus the CBC’s role in amending the VRA appears to have provoked popular and judicial resistance to the law and the ideology behind it. In a very real sense, the CBC’s efforts to defend such districting constitute an effort to protect black political power—and itself—from the potentially retrogressive effects of a color-blind voting rights jurisprudence. In sum,the CBC’s endorsement of race-based districting in its amicus briefs may have goaded the Court into checking congressional power by interpreting the law in a way that undermines Congress’s intent. There is no shortage of current studies on the use of amicus curiae briefs on judicial decision-making. Most, however, overlook the CBC in this role. Most also agree that groups seeking change through litigation assume that such briefs can in›uence the Court, or at least can help shape the debate on an issue. Conclusions about how amicus briefs in›uence the Court have been inconsistent.3 Paul Collins’s investigation of the relationship of such briefs to judicial decision making ‹nds a correlation between nonunanimous Court decisions and an increase in the number of briefs ‹led by interest groups. He concludes that such briefs are“staples of group interest activity” that help “light the ‹res of dissensus” on the Court and motivate dissenting justices “to express their displeasure with the majority ’s interpretation of the law.”4 Because dissents or concurrences may later be transformed into majority opinions, Collins’s ‹nding is no small point. The most well-known example of such a transformation is Justice John Marshall Harlan’s lone dissent in Plessy v. Ferguson becoming the unanimous opinion in Brown v. Board of Education. In the area of minority voting rights, Justice Clarence Thomas’s concurrence in Holder v. Hall provided the bulk of the...

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