Sometimes, in Supreme Court argument, a single phrase can speak volumes. Justice Anthony M. Kennedy, the one member of the Court who bore the most watching because the other eight seemed clearly to divide evenly, used the phrase “trusteeship of the United States government” as a shorthand way to describe how he views the regime set up by the Voting Rights Act of 1965 works. Of course, he meant it as a denunciation.
If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed. But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more.
But those who had attended the Court’s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states’ rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that.
As the new appeal, by Alabama’s Shelby County, reached the Court, there does not appear to be a ready method of avoiding the constitutional issue — provided that the Court is satisfied that Shelby County’s case is the proper one in which to reach it. And the possibility that it may not be the best test case came up early in the argument, and Kennedy, too, showed some interest in it.
Within the first minutes of the argument of the county’s lawyer, Washington attorney Bert W. Rein, Justice Sonia Sotomayor suggested that Shelby County’s record on minority voting rights had remain “pretty much” unchanged from the past. “You may be the wrong party bringing this,” she commented.
Justice Elena Kagan soon recited the current record of Alabama under existing civil rights laws, noting that the state would be the No. 1 offender in one category, and the No. 2 in another. “Under any formula that Congress could devise [for coverage under Section 5], it would capture Alabama,” Kagan said.
These questions and comments suggested that, if Alabama and its local jurisdictions could not escape from the law no matter how Congress revised the formula to deal with ongoing discrimination, then the state and Shelby County might not be able to claim any harm from it — and thus not be in a position even to challenge it in court.
It is not surprising, of course, that the Court’s more liberal members would want to find a way to avoid an ultimate decision to strike down the historic law, and they — like everyone else in the courtroom — could sense that that was a real possibility.
But what was potentially significant was that Kennedy perked up. He noted the questions by Kagan and Sotomayor, and asked Rein: “If you would be covered under any formula, why are you injured under this one?” The lawyer said he did not agree with the premise.
Kennedy persisted, saying that Rein should deal with “the hyp0thesis” that any formula would capture Alabama. Why would Alabama have a right to complain? Rein then challenged the authority of Congress to focus on a few selective jurisdictions, like Shelby County, and not look all across the nation to see if the problem of racial bias in voting was prevalent there, too.
Ruling that Shelby County doesn’t have a claim is an option that Dennison discussed previously. It’s a thin reed, and would be at most a temporary reprieve, since there are other cases in the queue that could serve the same purpose, if the purpose is to kill the VRA. But it’s something, for what it’s worth. Rick Hasen, on the other hand, is certain Section 5 is doomed. If Chief Justice John Roberts leads the way in overturning the VRA, you could say it’s the culmination of his life’s work, though Justice Scalia and his evolving view of “original intent” will get an assist. All we can do at this point is wait. The irony of all this happening as a statue of Rosa Parks was being unveiled is off the charts. Texas Redistricting has more, and see what Mustafa Tameez has to say about the VRA and Asian-American voters.