I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Does the Constitution say that Congress’s powers don’t extend to the kind of question Justice Scalia doesn’t think Congress is good at?

Today, the Supreme Court heard argument in Shelby County v. Holder.  The transcript is very much worth reading.

(Note to lay readers:  I attempt to explain the act at issue here about midway down the post if you want some help following the last block quote).

One part is pretty breathtaking.  Recall that Justice Scalia essentially does not believe in resort to legislative history.  One would think that would also suggest that rank speculation as to possible motives for Congressional votes.  Also, that he seems, at least when convenient, to have the view that Constitutional decisions ought to be grounded in the language of the constitution (as originally understood) and not something he or some other judge wants.

Well, when those views are inconvenient he walks off from them.  And, while doing so, describes the Voting Rights Act as a “racial entitlement.”  Here’s what he said.

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And  that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.

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 processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act.  And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that 15 there’s a good reason for it. That’s the — that’s the concern that those  of us who — who have some questions about this statute  have. It’s — it’s a concern that this is not the kind  of a question you can leave to Congress.

This is on page 47 of the transcript.

Somewhere in there I got lost.  Is the question whether the Constitution left this question to Congress or whether Justice Scalia thinks the question ought to be left to Congress?  I’d have thought the former, but apparently Justice Scalia thinks otherwise.

More bluntly:  There is nothing in the constitution that suggests that Congress’s powers do not extend to “the kind of questions” that Justice Scalia thinks “you” cannot “leave to Congress.”

If he’s suggesting that Congress’s powers do not extend to questions where politics might lead them astray or into incompetence, I suppose we can expect the Court to take on the passing of a budget.

After Justice Scalia went on and on some more about this, he used up all of the Solicitor General’s time.  Justice Roberts gave the lawyer five more minutes:

CHIEF JUSTICE ROBERTS: You have an extra 5 minutes.

GENERAL VERRILLI: Thank you. I may need it for that question.

I think it might be fair to put the word “question” in quotation marks there.

While Justice Alito also seems ready to bury the act, he is at least willing to praise it:

There is no question that the Voting Rights Act has done enormous good. It’s one of the most successful statutes that Congress passed in the twentieth century and one could probably go farther than that. 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?

Another fascination of the transcript is the grilling the lawyer for Shelby County gets right out of the gate from Justice Sotomayor, with Justices Ginsburg and Kagan quickly joining in.  After the lawyer said three sentences, Justice Sotomayor zaps him about any assumption the problems are solved:

JUSTICE SOTOMAYOR: 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.

JUSTICE SOTOMAYOR: In — in the period we’re talking about, it has many more discriminating -­ 240 discriminatory voting laws that were blocked by Section 5 objections.

There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.

MR. REIN: Well, this is an on-face challenge, and might I say, Justice Sotomayor -­

JUSTICE SOTOMAYOR: But that’s the standard. And 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?

MR. REIN: Well, I don’t agree with your premises, but let me just say, number one, when I said the South has changed, that is the statement that is made by the eight Justices in the Northwest Austin case.  …

In the case, Shelby County, Alabama is making a facial challenge to the constitutionality of Section Five of the Voting RIghts Act.  That is, Shelby County was saying that Section Five was unconstitutional on its face (as opposed to as applied).  Second Five imposes preclearance requirements on covered jurisdictions.  “Covered jurisdictions” are those that the original act found had a deep history of voting discrimination continuing into the present, and included states in the deep south, and subdivisions and states elsewhere.  Much of the nation was not “covered.”  Section Five froze in place voting requirements and required that a covered jurisdiction submit any change to the Justice Department (“preclear”) before applying any change.  If the Justice Department found the change likely to inhibit minority voting, it would refuse preclearance, and the covered jurisdiction had to sue in the District of Columbia federal court (or redraw the change to eliminate whatever problem) to be able to enforce it.  The act also provided that jurisdictions could be sued to be made subject to preclearance, and that a jurisdiction could go to court to prove it was no longer discriminatory and opt out.

The driving force behind the act was a finding by Congress that jurisdictions seeking to suppress minority voting would create new discriminatory devises as soon as old ones were held illegal.  The preclearance process stopped that.

Congress provided for a sunset provision in the act, and it has been reauthorized several times, most recently in 2006.  In 2009, a Justice Roberts opinion suggested that the act was possibly unconstitutional, and so we have today’s argument.

Reading the transcript, it seems pretty clear that there are votes who would hold that the act was constitutional when passed, but not when reauthorized in 2006.  That seems quite startling to me, because it involves the court accepting Congress’s determination of a need (based on an extensive record) in 1965, but refusing to accept a similar determination (with an extensive record) in 2006.  Justice Sotomayor put it nicely in questioning the lawyer for Shelby County:  “Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to answer that?”

Apparently ready to hold “because we can” are Roberts, Alito, and Scalia.

There is at least one vote for a second position:  Justice Kennedy seems to take CRS’s position* that Congress should not ever be able to place this burden on a state.

I’m going to assume that Justice Thomas will join group one, two, or both, which looks dire for Section Five.   As always, he provided no clue during oral argument.

Justices Sotomayor, Ginsburg, and Kagan all seem clearly hostile to the challenge, and it is pretty clear Breyer is with them on this.  Once again, it looks like Kennedy’s to decide, and it doesn’t look good.


*CRS in comments on this blog has suggested that Section Five is going to go down because Congress lacks the power to require preclearance.  It seems much clearer to me that the negative votes are going to be on the lines of “this can’t go on forever.”

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