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."
Justice Stephen Breyer (to Rein, continuing a "tree disease" analogy he previously had mentioned): "I don't know what they're [Congress] thinking exactly, but it seems to me one might reasonably think this: It's an old disease, it's gotten a lot better, but it's still there. So if you had a remedy that really helped it work, but it wasn't totally over, wouldn't you keep that remedy?"
Justice Samuel Alito (to Solicitor General Verrilli): But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of country should be covered based on a formula that is ground in up-to-date statistics. But why — why wasn't that required by the congruence and proportionality standards?"
Justice Anthony Kennedy (to SG Verrilli): This reverse engineering that you seem so proud of, it seems to me that obscures the — the real purpose of — of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not it should use criteria that are relevant to the existing — and Congress just didn't have the time or the energy to do this; it just reenacted it."
Justice Alito (to SG Verrilli): "Well do you really think there was — that the record in 2006 supports the proposition that — let's just take the question of changing the location of polling places. That's 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."
Chief Justice John Roberts (to SG Verrilli): General, is it — is it the government's submission that the citizens in the South are more racist than citizens in the North"
Justice Antonin Scalia (to SG Verrilli): And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process."
Justice Kennedy (to SG Verrilli): But if — if Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that in it's an own independent sovereign or if it's under the trusteeship of the United States Government?"
Justice Sotomayor (to Rein): "Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?"
Justice Kagan (to Rein): Well, that's a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that fell within our bailiwick."
If, as expected, the Supreme Court strikes down Section 5 of the Voting Rights Act, and if it does so following an election in which the provision protected minority voters in three separate "covered jurisdictions," and if it does so in favor of a county where racial discrimination in voting practices is still prevalent, and if it does so by arguing that Congress didn't adequately justify a law supported by weeks of testimony and thousands of pages of evidence, it will be an extraordinary event in American legal history. Don't say you weren't warned.