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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.”

62 comments to 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?

  • P.B. Pike

    CRS, I think the VRA and the voting system in Mississippi are ok the way they are — that is, without requiring ID and without photographing and fingerprinting people who show up without it like they’re common criminals — so it’s hard to discern where you heard me feeling sorry for myself. You’re the one obsessively complaining about your rights as a white Mississippian being trampled all the time.

    It’s curious (and really pathetic) that the day after I predicted a “white men’s pity party” on TBA’s blog you’d bat the phrase back at me all rubber-and-glue like.

  • When folks are eager to fix a problem that doesn’t exist, one is led to speculate as to the “problem” they’re really interested in “fixing.”

  • Pike, A client gave me a check the other day, and given that I often deal with broke people I always cash the checks immediately. I went to their bank, where I did not have an account, and was required to place my thumbprint next to my endorsement (even though I did have an ID).

    Did I feel like a criminal? Nope.

    It’s like you make up all of these things about how anyone who is required to behave decently will feel like a criminal. Why would they? The request is so reasonable that no honest person would complain. But it does make it harder to commit election fraud, and I think that worries Democrats.

  • I would be open to the thumbprint thing, properly administered, but again, you don’t have a constitutional right to cash a check. The bank could require you to drop your pants and sit your butt atop their photocopier.

  • P.B. Pike

    CRS, this will shock you: not everybody has coasted through life on the privileges that you’ve had. (Indeed, only the existence of privilege in our society can explain to me your status as a licensed attorney.) Some people, many of whom live in your community, have been subjected to invidious or stigmatizing treatment because of the color of their skin at the polling place. And in courts of law. And in police cars and county jails. And in the workplace. The fact that you’ve not experienced such treatment apparently has some intellectual meaning to you. You are wrong about that. It only means you’re narrow-minded. So I don’t give a good gaddamn what you felt when they asked you to put your thumb on that screen. As Anderson had to point out, you were not exercising a constitutional right when you asked to cash that check. You’re a lawyer for Christ’s sake, you are supposed to know that.

    A quick review of a police blotter or a court docket for, say, the preceding month, would no doubt show that in commercial venues passing bad checks is a practice that requires certain preventative measures. We’ve asked and asked and asked for similar such evidence on the subject of in-person voter fraud in Mississippi, and not only have you and your like-minded submitted nothing, one of you outright submitted evidence of election fraud in which requiring an ID would have been entirely useless. So instead we get these thoughtless analogies and hypotheticals that would be laughable if they were not evidence, in fact, of something very sad — namely, your witless habit of making moronic comparisons. Only a person completely indifferent to — or, worse, contemptuous of — the needs of a pluarlistic society with a history of racial discrimination would not see the glaring disconnect between your experience at the bank and the rather more fundamental and fraught history of racist tricks to disenfranchise certain groups of people at the polling place. It’s telling that you would ever equate the two, because it suggests that in formulating your opinions your life experience is the only one that counts.

    Your small personal history is not, thank heavens, the touchstone for sound policy. There are other people out here.

  • Pike, you can’t prove a negative. You can’t prove that people are fraudulently voting when the only way to catch them is to require ID.

    As for your other comments, I retract my proposal to allow people without an ID to vote by leaving their thumbprint and having their photo taken. I support the ID laws that have already been approved by the federal courts in others states: no ID, no vote, period.

  • Pike,

    Let me add to your comment that my admission to law school was not the result of “privilege.” I got in on my own merits; no strings were pulled, nor was there any need to. I passed the bar without any help and without taking a review course. I worked part-time at various jobs for most of the time I was in college, which is not that big a deal, but many college students don’t work at all.

    That doesn’t mean I haven’t had advantages. Life for me is certainly better than it would have been had I been born in Albania or Mali. No question. That’s not privilege; it’s just life. Life is certainly better for me because my parents were conventional types who chose to have children within the bounds of holy matrimony. That’s not privilege; it’s just life.

    I do find it amusing that you would claim that being required to provide a thumbprint treats people like criminals. When I pointed out that I was required to provide one this week and didn’t feel like a criminal, suddenly you scream that it’s not the same. Actually, it is exactly the same. It is an almost perfect analogy. Unfortunately you find the voice of reason to be unpleasant.

  • P.B. Pike

    How many times do we have to tell you, counselor: cashing a check is not a constitutional right. Voting is. Fraud by check is a known practice that compromises our system of commercial paper and requires reasonable preventive measures. There is no evidence that in-person voting fraud rises to that level. Your small experience at the bank the other day is not the standard by which one makes a serious public policy or constitutional argument. It is a helpful standard to discern whether somebody suffers from a crippling intellectual solipsism, and you most certainly do.

    Don’t pat yourself on the back too hard, counselor. It’s a less than perfect analogy. In fact, it’s moronic.

  • I guess you will have to tell me ten billion times, because the issue was not whether or not cashing a check was a constitutional right. The issue was whether or not requiring a thumbprint is treating someone as a criminal. Clearly it doesn’t. Now you want to argue a completely different issue.

    You have provided no proof that there is no in-person voter fraud. Due to the lack of an ID requirement it is really impossible to prove either way. But asking for a thumbprint deprives no one on any constitutional right.

    The constitution guarantees me the right to be compensated for government takings. Does that mean that the government can’t ask me to prove who I am before handing me a pile of money? Nope. They can even ask for my thumbprint without violating my constitutional rights. Once again, a perfect analogy, but you don’t understand analogies. Good thing you aren’t an attorney.

  • P.B. Pike

    The issue, CRS, is whether we should resurrect onerous or potentially stigmatizing conditions in the polling place in the total absence of any demonstrable need to do so. It’s known as “chilling” the exercise of a constitutional right such as voting. The State may not chill the exercise of your individual rights without a good, provable reason. Therefore the burden is on those who want a voter ID system to show the need for one. I think this is a particularly tough burden when elections in Mississippi have on the whole proceeded just fine without IDs and the known instances of corruption had nothing to do with in-person fraud. So your usual lame method of arguing “I know you are but what am I” is not just childish but a non-starter: I don’t want to change the voting system, so I don’t have to prove anything. You do.

    You have no right not to have your ability to cash a check chilled, so the bank or the State of Mississippi can require a fingerprint or a photograph or a cross-dressed rendition of “Copa Cabana” when you come to cash it. And again, *you* might not feel a chill at being fingerprinted and photographed, but there are classes of others — again, OTHER PEOPLE — who reasonably would, and do. The fact that you have convinced yourself, in the face of your putative libertarianism, that nobody of any background could possibly have any legitimate reason to dislike that kind of government interference with their right to vote tells me that you are, on these matters of legal and political equality, steeped in the blithe, intellectually cloistered and emotionally terrified submission to authority that has always animated the right in American politics.

    That’s why your analogy sucks.

    Not only am I an attorney, I make a living as one by presenting arguments based on logic, evidence and precedent. I understand that you made a conscious choice to steer clear of that sort of practice. On this we agree: that was a great call.

  • Researcher

    There is a documented history of voter fraud in Mississippi. It has been committed by state, county, and party officials intentionally disenfranchising certain types of voters. Mississippi has had a hard time embracing the idea that election results should represent the will of the people.

  • P.B. Pike


    How about a link or some other direct line to these documents? I assume you’re talking about in-person voter fraud? What “types of voters” have been disenfranchised through this fraud?

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