With the voting rights case and an upcoming decision about whether universities may consider race in their admission policies, the court is poised this term to render a powerful verdict on the progress the United States has made in remedying its history of discrimination and the role government may play in what is left to do.
Next month, in another pair of major civil rights cases, the justices will consider the right of same-sex couples to marry and the government’s recognition of those unions.
The sharp ideological differences that mark the court have rarely been on display more than in Wednesday’s dramatic and at times tense oral argument, which played out before a courtroom filled with political leaders such as House Minority Leader Nancy Pelosi (D-Calif.) and civil rights activists such as Rep. John Lewis (D-Ga.) and the Rev. Jesse L. Jackson.
The justices’ questioning of the lawyers was so intense that Chief Justice John G. Roberts Jr. allowed the session to run into overtime.
Section 5 of the law requires nine states, mostly in the South, and jurisdictions in other states to “pre-clear” any changes in voting laws with federal authorities.
Justice Antonin Scalia said Congress’s decision in 2006 to reauthorize the law was a result not of a studied decision but of a “phenomenon that is called perpetuation of racial entitlement.” Politicians, he said, are afraid to vote against something with the “wonderful” name of the Voting Rights Act.
The liberals on the court defended the reauthorization, saying Congress amassed overwhelming evidence of a continued need for Section 5, which covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska and Arizona, plus parts of seven other states.
“I don’t know what they’re thinking exactly,” Justice Stephen G. Breyer said of the nearly unanimous majorities in Congress that reauthorized Section 5. “But it seems to me one might reasonably think this: It’s an old disease, it’s gotten a lot better, a lot better, but it’s still there.”
The court in 2009 considered whether extending Section 5 was constitutional. The justices decided that case without a definitive answer but sent an unmistakable message to Congress that the court was dissatisfied with the formula used to determine which states were covered by Section 5.
In the 2009 case, Roberts wrote that such an imposition on state sovereignty must be justified by current needs. “The statute’s coverage formula is based on data that is now more than 35 years old and there is considerable evidence that it fails to account for current political conditions,” he wrote for seven other justices. Justice Clarence Thomas said he would have found the reauthorization unconstitutional.