Doubting Discrimination

Monday, May 4, 2009

STRONG DEFERENCE to the political judgment of lawmakers is a hallmark of judicial restraint. So it was more than a little jarring last week to hear conservative justices on the Supreme Court severely question the motives and findings of Congress when it extended a key voting rights provision three years ago.

The case before the justices centered around Section 5 of the Voting Rights Act of 1965, which requires certain states -- mostly in the South -- to clear in advance with the Justice Department or a federal court in Washington any changes to voting procedure. This provision was adopted after lawmakers became frustrated by repeated attempts by states to circumvent laws meant to eliminate voting discrimination. Lawmakers originally intended for the provision to lapse after five years but have extended it three times since then, most recently in 2006 with overwhelming bipartisan support and with the signature of President George W. Bush.

But during oral argument before the court, Chief Justice John G. Roberts Jr. appeared extremely skeptical about Congress's conclusion that such an extension was needed. "Obviously no one doubts the history here and that the history was different," he said, referring to the history of discrimination in the states covered by Section 5. "But at what point does that history . . . stop justifying action with respect to some jurisdictions?" The chief justice apparently gave little credence to the information gathered by Congress over 10 months and 21 hearings that contemporary -- not just historical -- discrimination exists and justifies the extension.

Justice Antonin Scalia also seemed dubious about congressional fact-gathering, asserting that the primary reason lawmakers extended Section 5 was to perpetuate the system that had led to their election. Justice Scalia went a step further: Wasn't Virginia, which is subject to Section 5 pre-clearance, "the first state in the Union to elect a black governor?" he asked one of the lawyers in the case. And doesn't it have "a black chief justice of the Supreme Court currently?"

These accomplishments are unquestionably welcome and, as the lawyer responded, a reflection of "the possibilities of our Constitution." But they do not negate the findings by Congress, including that between 1982 and 2006 the Justice Department rejected 700 proposed changes by covered jurisdictions as discriminatory -- two-thirds of those, it determined, "intentional" attempts to discriminate.

Justice David H. Souter, in what may have been his last oral argument before his planned retirement this year, offered a welcome counterbalance to the skeptics. Reeling off a list of violations identified by Congress, he concluded: "I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that they have radically changed . . . just seems to me to deny the empirical reality." It will be telling to see the extent to which the court's ostensible conservatives substitute their judgment on this question for that of elected legislators.

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