Roll Call: Reactions to Shelby County v. Holder and the Voting Rights Act

Hello, readers! I hope that your March experience has started off as well as mine has—Providence is experiencing some unseasonal sun right now and I’m looking forward to March Madness, SCOTUS Style at the end of the month. It’s a little slow at the Highest Court in the Land right now, so to pass the time before the Court conferences on Friday, March 15 (BEWARE THE IDES OF MARCH!), I’ll fill you in on the latest SCOTUS drama. And no, I’m not referring to the fact that the Obama Administration filed an amicus brief for Hollingsworth v. Perry, (the California Prop 8 same-sex marriage case), though that was a pretty bold move. I’m referring to the craziness surrounding the oral argument for Shelby County v. Holder, the Voting Rights Act case that I introduced in early February, took place on February 27.

A fair bit of commentary has been produced since the oral argument, but let’s focus on the oral argument itself, which was what some might call a “hot mess.” The Court’s liberal bloc acted predictably, and seemed fairly committed to preserving Section 5 of the Voting Rights Act, which requires some states to have their redistricting plans “precleared” by a trial judge or the Justice Department in order to eliminate gerrymandering and ensure the “one person, one vote” doctrine. As SCOTUSblog’s Lyle Denniston reports, “it was quite obvious that Justices Kagan and Sotomayor were keen on voting to uphold the law, and so were Justice Ruth Bader Ginsburg—and, perhaps, Justice Stephen G. Breyer.”

Justice Kennedy also followed an anticipated path in his “swing vote” capacity. His “overall comments went quite far to suggest that he, too, believes that the law… probably could not withstand constitutional scrutiny,” but “he seemed to want to be assured that the Voting Rights Act might still be enforceable, [sic] if Section 5 were to be nullified” (from SCOTUSblog). His denial of Section 5’s constitutionality will probably doom the provision to be struck down, but his willingness to preserve the Voting Rights Act (or some other form of vote equality) is promising for those who fear that “one person, one vote” will disappear if Section 5 does.  Finally, the four conservatives—Chief Justice Roberts and Justices Scalia, Thomas, and Alito—appeared to be “entirely unpersuaded that the law in its reenacted form was justified.” Many constitutional scholars predicted that the Court would divide itself this way; if this outcome was predictable, why do I think the Shelby County oral argument was a “hot mess”?

Because of Justice Scalia. During the oral arguments, he stated that the Supreme Court had to strike down Section 5 because “members of Congress would not take the political risk of undoing what he called ‘racial entitlements.’” Yes, folks, Justice Antonin Scalia was at it again. Apparently, according to him, a law that protects the voting rights of many minorities and was one of the key victories of the Civil Rights Movement is now merely a “racial entitlement.” Many civil rights groups and political pundits rallied against Scalia’s misguided, racist comment, which is heartening. And, given Scalia’s track record in the “offending minority groups” category, his remark should have come as anything but surprising. So why is this comment a “hot mess,” in the Grand Supreme Court Scheme of Things? (I’m getting to it, I promise.) Scalia’s comment qualifies as a “hot mess,” as a big mistake, as something that should garner him the utmost scrutiny from both constitutional scholars and his peers because it seems that Scalia forgot, or ignored, the very backbone of the case. Section 5 of the VRA was created because minorities were being discriminated against in the redistricting process. Minority votes didn’t count, and members of these minority groups wanted to be able to exercise a privilege of United States citizenship—the right to vote.

The satirist Stephen Colbert put it best when, after he called Scalia “Justice the Hutt,” he twisted the sentiments that Scalia expressed during Shelby County’s argument and proclaimed that racism is no longer a problem in the United States. Of course, this celebration of the fact that “WE OVERCAME IT!” was a joke, and was meant to point out exactly the problem that Scalia seemed to overlook: America is far from racial equality, and race-based discrimination still exists in this country. As Justice Breyer said regarding the unanimous Congressional reauthorization of Section 5, “I don’t know what they’re thinking exactly… But it seems to me that one might reasonably think this: It’s an old disease, it’s gotten a lot better, a lot better, but it’s still there” (from the Washington Post). He understood, as do many constitutional and political scholars, that the American political system still has many issues which are related to race, and that minorities in the United States are still fighting for their rights to this day. There is no way that Section 5 could be considered a “racial entitlement,” and it’s offensive that Justice Scalia believed it to be one. One would hope that justices of the United States Supreme Court would make their decisions based upon facts and not ignorance and prejudice. Admittedly, I’m not Justice Scalia’s biggest fan, but I can certainly appreciate his formidable legal abilities and his devotion to constitutional interpretation and scholarship. That’s why I can’t wrap my head around his misguided and uncomfortable comment, and that’s why he made Shelby County’s oral argument a “hot mess.”

For a more in-depth discussion of what’s at stake in Shelby County v. Holder and the facts and problems surrounding the case, it’d be a good idea to check out the scholarship of Nate Silver, Nina Totenberg, Daniel Heninger, and George Will, among others. They will provide you, dear readers, with strong analysis and background for one of the most crucial cases of the Court’s 2012-2013 session. I’ll still be here, judging the Justices and highlighting key goings-on at the Court, but sometimes it’s good to seek outside opinions. I’ll also be biding my time until the same-sex marriage cases are heard. Or until more Fourth Amendment cases come down the pipeline (can’t get enough of those warrantless searches!). Whichever one comes first.