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To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) contrasts with the Court’s embrace of state sovereignty in Shelby County (invalidating part of Congressional voting rights legislation). This uneven federalism represents not simply unprincipled judicial power, but instead a consistent judicial denial of the basic rationality of government deterrence of institutionalized wrongdoing. In State Farm, the Court prohibited states from imposing punitive damages sufficient to effectively respond to evidence of systemic national corporate wrongdoing. In Shelby County, the Court prohibited Congress from applying selective state voting oversight to jurisdictions with a long history and ongoing evidence of voting rights violations. Together, these cases show distinctive and disturbing solicitude to fears of speculative harms to powerful institutions from strong government deterrence. In contrast, these cases both reserve special skepticism and heightened scrutiny of evidence that harm to individual citizens or consumers can result from institutionalized wrongdoing producing unlawful structural advantages. Together, these cases suggest a vision of deference to institutional power to evade law directly contrary to the principles, history, and text of the Reconstruction Amendments.

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Berkeley Journal of African-American Law & Policy

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