Judging by the gasps from the lawyers’ lounge of the Supreme Court, Justice Antonin Scalia shocked listeners during Wednesday’s hearing on the Voting Rights Act when he called the law a “perpetuation of racial entitlement.” His words spurred fellow Justice Sonia Sotomayor into action as she immediately demanded of the arguing attorney:
“Do you think Section 5 was voted for because it was a racial entitlement? … Do you think racial discrimination has ended?”
The hearing was in the case Shelby Co. v. Holder, in which Shelby County, Alabama filed a lawsuit questioning whether, in 2006, Congress had the authority to renew the Voting Rights Act of 1965. The law specifies that parts of the country that have shown a history of voter discrimination can not make changes to their voter laws without the review and approval of the federal government. Section 5 freezes voting practices in certain states until a review takes place and Section 4 outlines the formula for determining which jurisdictions are covered. Both sections are at risk in this case.
Scalia wasn’t the only one of the Justices showing hostility to the act, just the most flamboyant in his bias; he also said, “This is not the kind of question you can leave to Congress”–to which Congress, constitutionally tasked with making the laws, might certainly take umbrage. Nevertheless, his opposition seemed to have allies in Chief Justice John Roberts, who asked Solicitor General Donald Verrilli, “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?” and swing voter Justice Anthony Kennedy, who observed that “times change.”
It’s an amazing year to be questioning the constitutionality of the act, given how vigorously it was called into use, over and over again, due to extensive voter suppression efforts in the 2012 election. The tightening of voter ID laws, restrictions on early voting hours, and new obstacles to voter registration most affected the young, the elderly, the poor, and minorities–in other words, those whom the law was designed to protect. Statutory changes in states like Texas, Florida, and Alabama were repeatedly challenged in an obvious demonstration of the protective value of the Voting Rights Act.
On the more liberal side of the court, Justice Stephen Breyer brought up the many recent efforts to keep minorities from voting. Although momentum doesn’t seem to be on his side, he valiantly asserted:
“It’s an old disease. It’s gotten a lot better. A lot better. But it’s still there.”
Lawyer and publisher of Scotusblog, Tom Goldstein, is of the opinion that the Court will require Congress to revisit the formula used for identifying offending jurisdictions without forbidding the use of preclearance before making changes in voting laws. However, he also points out that in the current climate, Congress is unlikely to act to pass necessary modifications.
In an ironic twist to the morning’s proceedings, a statue to civil rights activist Rosa Parks was being dedicated across the street from the Supreme Court while the hearing was going on. The Reverend Al Sharpton had this to say, after hearing about the words coming out of the court:
“The arguments that we heard this morning gives us cause to pause and hope that we will not have to return to the streets to secure voting rights.”
Amen to that–but that’s going to take a lot of hope!