Deputy Solicitor General Neal Katyal stands up to defend Section 5, and he describes Congress' reauthorization of the Voting Rights Act in 2006 as "the paradigmatic attempt of what to do in Congress." But Chief Justice John Roberts, Justice Antonin Scalia, and Justice Samuel Alito rapidly come flying at Katyal's head about how they personally could have done it better: "Why didn't Congress extend Section 5 to the entire country?" asks Alito. He points out that "the difference between Latino registration and white registration in Texas was 18.6 percent," which is "substantially lower than the rate in California, which is not covered (37 percent); Colorado (28 percent); New Mexico (24 percent); or the nationwide average (30 percent)." So why single out Texas?
When Katyal replies that Texas is treated differently because of its history, Alito wonders, "At what point does that history stop justifying action with respect to some jurisdictions but not with respect to others?" Roberts adds more bluntly, "Congress can impose this disparate treatment forever because of the history in the South?"
Kennedy starts to fret about the burden all this enforcement puts on taxpayers. And don't even get him started on the burden it puts on the covered states: "So Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments [in] the other?"
For anyone who wondered whether Kennedy really was really willing to be The Guy Who Struck Down This Landmark Piece of Civil Rights Legislation, it abruptly becomes clear that as long as he can say he's merely defending the "sovereign dignity" of Alabama, he might just be OK with it. He pretty much eulogizes Section 5 when he muses that "no one questions the validity, the urgency, the essentiality of the Voting Rights Act. The question is whether or not it should be continued with this differentiation between the States."
Some classic Scalia moments follow quickly. In the first, he insists that the judgment of Congress is not to be trusted because when it came to reauthorizing the Voting Rights Act, "they get elected under this system. Why should they take it away?" Oh. My. God. You mean legislators are self-interested!?! That must mean the court is free to substitute its judgment for that of Congress.
Debo Adegbile is in the case representing the NAACP Legal Defense Fund. When he reminds the court that "Congress is permitted to use so much of its power as is necessary" to remedy racial discrimination, the Chief Justice clobbers him with: "Is it your position that today Southerners are more likely to discriminate than Northerners?" When Adegbile replies that the covered states tend to be repeat offenders in this area, Roberts comes back with, "So your answer is yes?"
Scalia asks Adegbile what the vote was when Congress reauthorized Section 5 in 2006.
Answer: 390-33 in the House, 98-0 in the Senate. Scalia retorts that "the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there." (And before you liberals start crowing that Scalia is citing foreign law, let it be noted that he is citing religious law, which is totally cool and different than foreign law.) Today Scalia seems to have fashioned a new constitutional principle: The courts should always defer to Congress unless Congress is unanimous, in which case Congress is a sack of self-interested liars. Fascinating.
Scalia asks how Virginia can be such a racist place if it was the "first State in the Union to elect a black governor" and "has a black chief justice of the Supreme Court." This is a proxy for the question everyone was hoping someone else would ask—i.e., how can there be racism in America if Obama is president? Adegbile replies that the "occasion of a single person sitting in a seat doesn't change the experience on the ground for everyday citizens."
In his rebuttal, Coleman makes the argument for killing Section 5 that Kennedy evidently most wants to hear: In reauthorizing Section 5, "Congress didn't know, because it didn't ask, whether discrimination is worse in Tennessee or Arkansas than in Virginia and other States." Congress has used old data to stigmatize and undermine the sovereign dignity of some states and not others. And Kennedy is all about the sovereign dignity. The real question for the court today is whether there are indeed five votes for saying that for purposes of Section 5, America is so right that Congress must be wrong. It looks like there may be. And that's a long, long journey for the humble, minimalist Roberts Court.