Sifting Oral Argument in Voting Rights Act Case, at Least we Know Where Scalia Stands

March 1, 2013

by Jeremy Leaming

Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.


So it would undoubtedly be a major setback to Congress’s ability to ensure the promise of both the 14th and 15th Amendments if Kennedy were to join his four colleagues who appear more than ready to strike Section 5.

What can be said with certainty is that Justice Antonin Scalia continues to undermine longtime conventional wisdom crafted by a few fawning Supreme Court correspondents that he is a charming and witty chap and the Court’s most powerful writer. Paul Campos, Rachel Maddow and many others are working to correct the narrative.

Scalia’s flippant comments on the Voting Rights Act’s reauthorization in 2006 and his overwrought claim that the law perpetuates “racial entitlement” only adds to the tiresome lines of attacks uttered by the rightist jurist over the years.

In a piece for The Huffington Post, George Washington University law professor Spencer Overton nails it, saying Scalia’s commentary on the Voting Rights Act “was the kind of political screed you might hear from Rush Limbaugh. Scalia’s baseless platitude could just have easily be made in the opposite direction – someone could claim Scalia wants to strike down voting protections to ‘perpetuate racial entitlement’ whites have enjoyed for centuries. Neither assertion is appropriate in a court of law.”