Is voting really a "racial entitlement"? Is racial discrimination in voting a "disease?" Ladies and gentlemen, here are your justices.
I filed an early piece yesterday afternoon on the remarkable oral argument in Shelby County v. Holder, the challenge to the Voting Rights Act at the United States Supreme Court. But I fear that I failed to adequately convey the flavor of what happened inside court Wednesday morning. Sometimes, the arguments in big Supreme Court cases are dry. Last year's fight over the Affordable Care Act was like that. But sometimes the arguments in big Supreme Court cases are profoundly revealing. Yesterday's was like that. I mean, a justice of the United States Supreme Court actually called the right to vote a "racial entitlement."
Re-reading the transcript — and, please, you should read it if you haven't already — I was struck by the gulf between the real world and the world of the Court. For example, not a single word was uttered during the argument about the voter suppression efforts of 2012 even though Section 5 of the Voting Rights Act, the very provision under the gun, was successfully invoked last year in Texas, Florida and South Carolina to prevent racially discriminatory voting measures. You would think that the best evidence of a law's continued purpose would be its... continued purpose. But no.
Then there is the gulf on the Court itself. If you read the transcript you'll notice that the Court's liberal justices reserved their questions mostly for the lawyer from Shelby County, Alabama, who had the nerve to declare, amid an ocean of evidence of modern voting discrimination in his state, that the Voting Rights Act had served its purpose. You'll also notice that the Court's conservatives saved their questions mostly for Solicitor General Donald B. Verrilli, Jr. and civil rights attorney Debo P. Adegbile. This is not, in this instance, an open-minded court.
To give you the best sense of the ways in which the Court is split along ideological lines here, to give you a sense of the disconnect under which the justices will be laboring between today and late June when they issue their divided, divisive ruling, I've lined up a few quotes from the argument (in the order in which they were made). It's always unfair to single out a particular quote but these truly are illustrative. Justice Clarence Thomas, of course, was silent. But he's told us four years ago, in a case out of Texas, that he is ready to strike down Section 5.
Justice Sonia Sotomayor (to Shelby County attorney Bert W. Rein): "May I ask you a question Assuming I accept your premise, and there's some question about that. that some portions of the South have changed, your county pretty much hasn't... In.. In the period we're talking about, it has many more discriminating — 240 discriminatory voting laws that were blocked by Section 5 objectives. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this."
Justice Elena Kagan (to Rein): "But think about this State that you're representing, it's about. a quarter black, but Alabama has no black statewide elected officials. If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one State on the list... I mean, you're objecting to a formula, but under any formula that Congress could devise, it would capture Alabama."
Justice Ruth Bader Ginsburg (to Rein): "Mr. Rein, you keep emphasizing over and over again in your brief and you said it a couple of times this morning. Congress was well aware that [voter] registration was no longer the problem. This legislative record is replete with what they call second generation devices. Congress said up front: We know that the registration is fine. That is no longer the problem. But the discrimination continues in other forms."