Seemingly aware that they were outnumbered and fighting an uphill battle, the four liberal justices on the Supreme Court defended the Voting Rights Act during Supreme Court oral arguments Wednesday with a mix of sharp questions, appeals to history, and indirect rejoinders to the more conservative justices.
All four of them participated actively in oral arguments. None was more emphatic than Justice Sonia Sotomayor.
The Obama-appointed justice asked the first question of the day. She hammered Burt Rein, the lawyer representing the challengers, Shelby County of Alabama, over its record of discrimination. The county contends that Section 5 is unfair to its residents and other jurisdictions that it requires to obtain federal preclearance before changing their voting laws.
“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,” Sotomayor said of Shelby County, which is 90 percent white. “In the period we’re talking about, it has many more discriminating -Â- 240 discriminatory voting laws that were blocked by Section 5 objections. … You may be the wrong party bringing this.”
“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, wondering why the Court should invalidate Section 5 if, as she argued, any formula would cover Shelby County. “Discrimination is discrimination.”
While Section 5 was taking a beating at the hands of the conservative justices, the four liberal-leaning justices targeted various audiences. Sometimes they played to each other, sometimes to the conservative justices they hoped to sway, sometimes to the future Court, sometimes to the public audience.
Justice Stephen Breyer several times tried to needle the lawyers defending the Voting Rights Act into addressing conservatives’ concerns. Other times, he did so himself.
“The disease is still there in the state,” he said. “Of course this is aimed at states. What do you think the Civil War was about? Of course it was aimed at treating some states differently than others.”
Justice Ruth Bader Ginsburg took the liberty of knocking down what she viewed as a straw man argument by attorney Rein.
“Mr. Rein, you keep emphasizing over and over again in your brief registration and you said it a couple of times this morning,” she said. “Congress was well aware that 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 Elena Kagan twice said the Section 5 coverage formula has been working “pretty well” when it comes to snuffing out voter discrimination where it’s most likely to emanate. When Rein argued that it’s the courts, not Congress, who should determine whether the coverage formula is legitimate, she sounded shocked.
“That’s a big new power you’re giving us,” Kagan said, “that we have the power to determine when racial discrimination has ended. I did not think we had that power.”
In the final moments of the argument, Sotomayor, apparently taken aback by Justice Antonin Scalia’s statement that Section 5 is a “perpetuation of racial entitlement,” put the question to Shelby County’s lawyer.
“Do you think that the right to vote is a racial entitlement in Section 5?” she asked Rein. When he dodged, she asked him again: “I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?” He dodged again.
