After sitting in the U.S. Supreme Court building listening to 90 minutes of oral arguments in Shelby v. Holder, it’s still hard to predict how the high court will rule on Section 5 of the Voting Rights Act. As we’ve reported, Shelby County, Ala., is challenging the constitutionality of Section 5, which requires certain states, counties and towns with strong legacies of race-based voting discrimination to obtain federal approval (“preclearance”) for every change they want to make to their election laws.
During the hearing Section 5 supporters on the Supreme bench made a good case for why Shelby makes a poor witness given the county’s recent voting rights violations.
Meanwhile, Act skeptics on the bench repeatedly wondered if Section 5 should either be applied to the entire country or nowhere at all. Attorneys representing the federal government argued that blanket Section 5 coverage is not what Congress intended or desired, as it would weaken enforcement by spreading the Justice Department too thin.
As usual, the lone black Supreme Court justice, Clarence Thomas—whose own seat was made possible by historic civil and voting rights victories—said absolutely nothing.
The Court isn’t expected to make an official judgement until this summer. In the meantime, five takeaways from yesterday’s hearing:
According to Justice Scalia, The Supreme Court doesn’t like to talk about race.
Late in the hearing Justice Antonin Scalia announced that “this Court doesn’t like to get involved [in] racial questions such as this one.” Congress should deal them, he reasoned. But Scalia contradicted himself when he attributed the 2006 congressional reauthorization of the Voting Rights Act and its 98-0 favorability among the Senate to “a phenomenon that is called perpetuation of racial entitlement” rather than a matter of doing the right thing.
After the hearing, Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights, called Scalia’s comment “outrageously” insensitive. ”It just shows a lack of comprehension of where we are as a nation,” she continued. “No one is saying, ‘Treat me special.’ No one is saying, ‘Double my vote.’ We are just saying, ‘Make it so we’re not discriminated against.’ That’s all the law says. How does that become an entitlement?”
Shelby County’s lawyer believes that race-based voter discrimination no longer exists.
With a straight face Shelby’s attorney Bert W. Rein told the justices, “I think the problem to which the Voting Rights Act was addressed is solved.”
“Who gets to make that judgement?” Justice Elena Kagan challenged.
Congress could address the issue, Rein said, but it was up to the Supreme Court to “determine whether the problem indeed has been solved.”
Kagan shot back: “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.”
Later it became apparent that Rein didn’t understand that racism was the fundamental problem that Section 5 of the Voting Rights Act was designed to address. He seemed to think Section 5 was just about the historic practice of requiring black people—who had been legally barred from reading throughout their enslavement—to take literacy tests to determine their voting eligibility.
Justice Stephen Breyer had already identified the central issue of Voting Rights Act as “the denial or abridgement by a state of the right to vote on the basis of race and color.”
But since they had competing visions, Breyer asked Rein, “How do we decide what the problem was that Congress was addressing in the Voting Rights Act?”
“Registration and voting,” Rein restated, and “the use of [discriminatory] devices” like literacy tests, which are no longer in use.
Rein seemed to truly believe that thousands of civil rights activists fought and died just to get rid of literacy tests, but not the racism fueling them.
Chief Justice Roberts can’t see the difference between Massachusetts and Mississippi.
At one point Justice Roberts peppered the U.S. government’s lawyer, Donald Verrilli, with statistics showing that Massachusetts has larger racial disparities in voter turnout and registration than Mississippi does. The numbers, said Roberts, implied that a New England blue state was more racist than a Southern red state once notorious for its violent suppression of the black vote.
It was a curious comparison. One could argue that in a solid blue state like Massachusetts with few electoral votes to offer that there’s less incentive for black people to register or turn out, unless they’re in the Republican minority. In a red state like Mississippi, there is a much greater incentive to vote if you are black, if only to upend its long history of racist policies.
Roberts also asked the U.S. lawyer point blank if the South was more racist than the North, a question Verrilli ducked. Anita Earls, director of the Southern Coalition for Southern Justice, said afterward that she wished Verrilli had drawn from her amicus brief, which is chock full of evidence that when it comes to voting, the South is in fact more racist than the North.
Justice Scalia thinks Congress members can’t be trusted to overcome their fear of being called racist.
When Scalia made the “racial entitlement” comment he went on to imply that in 2006, senators voted unanimously in favor of the Voting Rights Act out of white guilt and a fear that they’d seem racist if they didn’t. Perhaps, he said, “this is not the kind of a question that you can leave to Congress.”
Despite his inquiry, the Constitution gives Congress explicit and exclusive authority to enforce the 15th amendment, which forbids racial discrimination in voting. And the Supreme Court has upheld congressional authority four times, including six months after the Act was passed.
When Scalia questioned why the U.S. Congress rather than the high Court should be trusted to handle voter discrimination, Verrilli explained that when the House and the Senate reauthorized the Voting Rights Act in 2006—after nine months of testimony through 28 hearings—they also made ” predictive judgements about social conditions and human behavior,” and that those judgments were “about something that the people in Congress know the most about, which is voting and the political process.”
Translation: Members of Congress have to campaign for and win people’s approval to take office, and then, a few years later, do it all over again. Y’all up there on the bench get appointed and then you’re set for life.
Elise C. Boddie, director of the NAACP Legal Defense Fund and a Section 5 supporter, later agreed. “The core question is this: [Which] institutional body is best equipped to evaluate the social conditions on the ground and make predictive judgments about the continuing need for Section 5? Unquestionably Congress is that body.”
High Court conservatives pay only lip service to the lingering legacy of race-based voter suppression.
The Supreme Court’s conservative justices held a polite distance from the civil rights history that made the Voting Rights Act possible, honoring it in rhetoric, but questioning its relevance today. Later I asked Rep. John Lewis, a central figure in the bloody fight for voting rights, if the justices critical of Section 5 were truly aware of the history. “Sure, they’ve been reading the literature,” he said. “They know something about the whole struggle and how the whole Voting Rights Act came into being.”
Yet conservative justices didn’t spend much of yesterday’s hearing probing the regional racism at the root of federal authority under Section 5. Ultimately, only Congress can strengthen the Voting Rights Act. Given its current priorities like immigration reform, gun violence and the so-called sequestration, the House and Senate will likely need sustained public pressure to do so. A negative Supreme Court ruling on Section 5 might just might trigger that pressure. Still, if the high court does uphold Section 5, this time around, the fight is far from over: Texas has already loaded a Section 5 challenge onto the Supreme Court docket in defense of its voter ID bill.