Analysis

Sometimes, in a 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. 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.

The argument Wednesday in one of the most important cases of the Court’s current Term — a hearing that ran seventeen minutes longer than the allotted hour — left no doubt that four of the Justices (and maybe Kennedy with them) are just as troubled as they were four years ago when they last lambasted the selective enforcement approach mandated by history’s most successful civil rights law. Equally, there was no doubt that four Justices — including the two newest members — were prepared to let Congress have its way with the twenty-five-year extension of the law.

Naturally, that meant the potential swing vote would be held by Justice Kennedy. His heart evidently was with the sentiment that Congress’s failure to make the law’s key Section 5 reach more widely and its failure to change the Section 4 formula by which states and local governments get covered should lead the Court to strike down one or both of those provisions.

Kennedy most clearly displayed that sentiment when he put a portentous question to the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr. It was a rather peculiarly worded question, but its thrust was very clear. If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, “is it better off doing it if it’s an own independent sovereign or if it’s under the trusteeship of the United States government?”

Verrilli, who had just told Kennedy that the government does respect the system of American federalism, had no direct answer to the tougher question. He felt a need in response to repeat the claim that Congress had acted cautiously in 2006 when it reenacted the 1965 law, and took “a more prudent course, even given the federalism concerns.”

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.

Rein commented in reply that the county was challenging the law as it was written, not as it would apply to any particular jurisdiction, and that Shelby County was covered only because the entire state of Alabama was.

Justice Sotomayor moved in to emphasize her and Kagan’s point. Under the record that Congress had before it in renewing the law, Sotomayor said, the approach Congress took would be appropriate for Alabama. Rein again said that the formula of coverage is why Shelby County is covered.

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.

Aside from Kennedy, no one could leave the courtroom on Wednesday without tentatively counting the votes of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia as entirely unpersuaded that the law in its reenacted form was justified. Justice Clarence Thomas, as usual, said nothing, but he was all in favor of striking down the law in 2009, so his views very likely would remain the same now.

Justice Scalia provided the most jarring comment throughout the lengthened argument. Belittling the government argument that the reenacted law was passed by a unanimous vote in the Senate, Scalia set off in a lengthy counter-argument, saying that made no difference because members of Congress would not take the political risk of undoing what he called “racial entitlements.” (Outside the Court, the reaction from civil rights organizations was swift, and heartily condemning, as they defended a law that everyone acknowledges is a great monument in the civil rights struggle.)

Scalia’s comment, aside from its harshness, was obviously made to add emphasis to his argument that, while the law might well have been entirely justified at one time, it was no longer.

Justice Kennedy’s overall comments went quite far to suggest that he, too, believes that the law, if not modified to capture more states in more equal enforcement, probably could not withstand constitutional scrutiny. But occasionally, as with his apparent interest in the role of Shelby County as perhaps the wrong challenger, the always-potential “swing” Justice made other remarks that suggested he might not be prepared — as he almost certainly was not in 2009 — to go all the way to invalidate the law’s Section 5, the statute’s core.

He seemed to want to be assured that the Voting Rights Act might still be enforceable, if Section 5 were to be nullified. He commented that the other enforcement provision — Section 2, which applies nationwide, but does not put the burden of proof on covered states as Section 5 does — was not an adequate substitute. At the same time, however, he wondered whether the potential potency of enforcement might in more recent years be not much different between Sections 2 and 5. These, too, were some hints of ambivalence.

On the other side of the Court’s customary philosophical divide, 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, too, although as is often the case, Breyer’s interventions suggested he might not be as predictable a favorable vote as the other three.

If, as the Court’s private deliberations move on from Wednesday, it appears that the Court is moving toward striking it down, those four might well make a strenuous effort to persuade Justice Kennedy to join with them in ruling that Shelby County could not show that it faced any harm from the law in its present — or even in its prospective form if amended — and thus should not be allowed to seek a ruling to strike it down.

Recommended Citation: Lyle Denniston, Argument recap: Voting law in peril — maybe, SCOTUSblog (Feb. 27, 2013, 1:16 PM), https://www.scotusblog.com/2013/02/argument-recap-voting-law-in-peril-maybe/