Justice Samuel Alito (to Solicitor General Verrilli): 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? Maybe the whole country should be covered. Or maybe certain parts of country should be covered based on a formula that is ground in up-to-date statistics. But why — why wasn't that required by the congruence and proportionality standards?"

Justice Anthony Kennedy (to SG Verrilli): This reverse engineering that you seem so proud of, it seems to me that obscures the — the real purpose of — of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not it should use criteria that are relevant to the existing — and Congress just didn't have the time or the energy to do this; it just reenacted it."

Justice Alito (to SG Verrilli): "Well do you really think there was — that the record in 2006 supports the proposition that — let's just take the question of changing the location of polling places. That's a bigger problem in Virginia than in Tennessee, or it's a bigger problem in Arizona than Nevada, or in the Bronx as opposed to Brooklyn."

Chief Justice John Roberts (to SG Verrilli): General, is it — is it the government's submission that the citizens in the South are more racist than citizens in the North"

Justice Antonin Scalia (to SG Verrilli): 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 process."

Justice Kennedy (to SG Verrilli): But if — if Alabama wants to have monuments to the heroes of the Civil Rights Movement, if it wants to acknowledge the wrongs of its past, is it better off doing that in it's an own independent sovereign or if it's under the trusteeship of the United States Government?"

Justice Sotomayor (to Rein): "Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?"

Justice Kagan (to Rein): 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? I did not think that fell within our bailiwick."

If, as expected, the Supreme Court strikes down Section 5 of the Voting Rights Act, and if it does so following an election in which the provision protected minority voters in three separate "covered jurisdictions," and if it does so in favor of a county where racial discrimination in voting practices is still prevalent, and if it does so by arguing that Congress didn't adequately justify a law supported by weeks of testimony and thousands of pages of evidence, it will be an extraordinary event in American legal history. Don't say you weren't warned.



