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.
Congress took no action after that decision, and there were signs Wednesday that conservatives on the court had lost patience. Justice Anthony M. Kennedy, who often casts the deciding vote when the court is ideologically split and is a strong supporter of federalism, said the current situation leaves Alabama under “the trusteeship of the United States government.”
He also criticized the use of the formula, which originally was based on measures such as literacy tests and voter-registration percentages, to determine which states Section 5 covers.
“If Congress is going to single out separate states by name, it should do it by name,” Kennedy said. “Congress just didn’t have the time or the energy to do this; it just reenacted” the existing formula.
Justice Samuel A. Alito Jr. called the Voting Rights Act “one of the most successful statutes that Congress passed in the 20th century” but nevertheless said the selection of jurisdictions covered by Section 5 makes no sense today.
Comparing jurisdictions that are covered with those that are not, he questioned whether discrimination is “a bigger problem in Virginia than in Tennessee, or it’s a bigger problem in Arizona than Nevada, or in the Bronx as opposed to Brooklyn.”
Solicitor General Donald B. Verrilli Jr., who along with Debo P. Adegbile of the NAACP Legal Defense and Educational Fund was defending the law’s reauthorization, was bluntly asked by Roberts: “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?
Verrilli said the government was not making that claim but instead was arguing that Congress had found that Section 5 was still needed in those jurisdictions and, in doing so, was relying on a formula that the court had found constitutional in four previous examinations.
The law was being challenged by Shelby County, Ala., a growing suburb south of Birmingham. The county was represented by Bert W. Rein, a Washington lawyer who said today’s Alabama bears “no resemblance” to the state that earned its spot on the 1965 list.
But the liberal justices were armed with statistics. “You’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama,” said Justice Elena Kagan, citing findings that a greater proportional number of violations of the act occur in the South.
Justice Sonia Sotomayor said it was a recent violation by a town in Shelby County that led to the current case. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” she asked.
Although the discrimination of 1965 may no longer be present, Justice Ruth Bader Ginsburg said, “the discrimination continues in other forms.”
The question of deference to Congress provoked the most dramatic moments. When Scalia said the 98 to 0 Senate vote for reauthorization was evidence that lawmakers had not seriously considered the issue, Kagan took the unusual step of addressing him directly.
“Well, that sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”
Addressing Verrilli, Scalia repeated his concern that extending the voting rights law is “not the kind of a question you can leave to Congress.”
Verrilli disagreed, saying, “We are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights.”
Kennedy suggested several times that another part of the law, which applies to the entire nation, is enough to prevent discrimination.
The symbolic significance of Section 5 could make the court reluctant to strike it down entirely. Instead, the justices could keep the section but declare that the formula used in selecting the covered states is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be hard to get a new formula through a partisan and polarized Congress.
The case is
Shelby County v. Holder
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