In the past two years, Chief Justice Roberts has authored two opinions for the Supreme Court in important cases concerning congressional regulation of voting and elections. The first, Shelby County v. Holder, struck down as unconstitutional a key component of the Voting Rights Act of 1965, the statute empowering the federal government to monitor states with a history of racially discriminatory voting procedures. The second, today’s McCutcheon v. FEC, struck down as unconstitutional certain congressional limits on how much money an individual political donor can contribute in any one campaign cycle.
Here are the first two lines that Chief Justice Roberts wrote in these two opinions; see if you can guess which came from which:
The [congressional statute at issue] employed extraordinary measures to address an extraordinary problem.
There is no right more basic in our democracy than the right to participate in electing our political leaders.
Which line would you guess had to do with the problem of wealthy campaign donors enjoying privileged access to elected representatives, and which line would you guess had to do with the problem of America’s long and violent history of limiting the franchise by race? Here’s the answer: the first sentence is from Shelby County, and the second is from McCutcheon.
Both cases turned on complex statutory schemes and constitutional doctrines, and I’m not here making any argument about the specific legal issues, holdings, or outcomes. One could agree with the holdings of neither, one, or both cases and still, I think, share my observation that, as a rhetorical matter, the difference in emphasis is striking. “Call me Ishmael,” “Lolita, light of my life,” “Happy families are all alike,” “I am an invisible man”: first sentences matter. The “right [most] basic in our democracy,” the individual “right to participate” — the heart of the Voting Rights Act, the right for which John Lewis had his skull cracked on Alabama’s Pettus Bridge — was not given pride of place in the opening line of Roberts’s Shelby County opinion. It was given pride of place in McCutcheon, a lawsuit brought by an Alabama businessman “who contributed a total of some $33,000 to 16 candidates for federal office in the 2012 election cycle,” and “wanted to give $1,776 each to 12 more” but was legally barred from doing so.