The sharpest fighting over geography came when it was Solicitor General Donald Verrilli Jr.’s turn at the podium. Chief Justice John Roberts gave him a pop quiz. Which state has the worst ratio of white to African American voter turnout? Massachusetts. Which is best? Mississippi. Where is voter registration most disproportionate? Massachusetts again. (This time Mississippi comes in third, if I heard right.) When Verrilli didn’t know the answers, Roberts kindly supplied them. Yes, the solicitor general said, but Congress knew all of that in 2006 and cared about more than the “first generation” problems of turnout and registration. Lawmakers made the “cautious choice” to keep the old constraints in place.
This was Justice Samuel Alito’s opening: “There is no question that the Voting Rights Act did tremendous good. It’s probably one of the most successful laws of the 20th century,” and even beyond. “But in 2006, why not cover the whole country?” he asked. Or why not come up with “a new formula based on new statistics?” What if Congress had passed the 1965 Voting Rights Act based on numbers from 1919?
Verrilli kept arguing that Congress “wasn’t writing on a clean slate” and “had evidence of very substantial differences in Section 2 litigation” between states in the South and states elsewhere in the country. But now it became very clear that Kennedy wasn’t buying it. He called what Congress did in 2006 “reverse engineering,” and he didn’t mean that as a compliment. The idea, I think, is that Congress interpreted the evidence before it to justify renewing the old coverage formula, rather than thinking through what it all really added up to afresh. Kennedy’s kiss goodbye to Section 5: “The Marshall Act was good too, but times change.”
I could end there, because that’s when the 5 to 4 count seemed inevitable. But I have to tell you about how Justice Antonin Scalia understands the vote of 98 to 0 in the Senate to reauthorize the Voting Rights Act the last time around. This is proof not of the strength of the case for the law, but of what Scalia called “the perpetuation of racial entitlement.” Once you have such an “entitlement,” he said, “it’s very difficult to get out of them. There’s nothing to be gained by voting against it, and I am fairly confident it will be re-enacted in perpetuity unless the court can show that it’s unconstitutional.” In other words, “that you are treating states differently” for no good reason.
So this is how five conservative justices justify overriding the judgment of Congress about how to protect the rights of minority voters, past, present, and future. Sotomayor and Kagan tried to hit back. “Why should we make the judgment, and not Congress, about the types and forms of discrimination and how to remedy them?” Sotomayor asked.
This was during Rein’s rebuttal, and he must have counted to five and gotten overconfident, because he said that the problem the Voting Rights Act was meant to address had been solved. “The radical treatment cured the disease,” he said.
Kagan nailed him. “You said the problem has been solved,” she said. “But who gets to make that judgment—you, the court, or Congress?”
Oh, not me, Rein deferred. You.
“That’s a big new power you’re giving us!” Kagan exclaimed.
Five of her colleagues seem more than ready to take it.