SCOTUS oral arguments reflect indifference to constitutional grounding of Voting Rights Act

p, , {margin:0in;margin-bottom:.0001pt;font-size:12.0pt;font-family:Cambria;} div.WordSection1 {page:WordSection1;} Supreme Court appears likely to strike down the most important provision of the Voting Rights Act of 1965


The Supreme Court appears very likely to strike down the most important provision of the Voting Rights Act of 1965, says Gregory P. Magarian, JD, constitution law expert and professor of law at Washington University in St. Louis.

“This was an unusually revealing oral argument, because two justices asked questions that reflected both fundamental misunderstanding of the law and disturbing indifference to the constitutional grounding of the Voting Rights Act,” he says.

“Given that the two justices in question are the leading intellectual lights of the Court’s right-wing majority, and given that almost everyone expects both of them to vote to strike down Section 5, their statements from the oral argument deserve attention,” Magarian says.

Section 5 of the Voting Rights Act requires certain “covered jurisdictions” with histories of racial discrimination in voting, mostly in the South, to obtain “preclearance” from the U.S. Department of Justice before implementing any changes in election laws or procedures. Shelby County, Ala., has challenged Section 5 as beyond the scope of Congress’s power to enforce the constitution’s bar against racial discrimination in voting.

Magarian’s comments on the Voting Rights Act oral arguments follow:

Justice Antonin Scalia claimed that continued enforcement of section 5 amounted to ‘perpetuation of a racial entitlement.’

He asserted that congressional reauthorization of Section 5 reflects nothing more than fear of reprisals by the overwhelming political might of racial minority groups. That assertion reflects a misunderstanding of the Court’s constitutional role, from a justice who has often complained loudly about supposed acts of judicial activism by others.

First, Judges have no special competence to discern legislators’ motives. Indeed, Justice Scalia has spent his career attacking efforts by his colleagues to determine the purposes of statutes. His failure to take into account Congress’s careful consideration and debate when reauthorizing the Voting Rights Act exemplifies the very sort of incompetence he has assailed in other settings.

Second, even if Justice Scalia’s interpretation of Congress’s motive were correct, it would be legally irrelevant. The Supreme Court does not sit to second-guess Congress’s policy choices.

The word “perpetuation” in Justice Scalia’s comment embodies an even more disturbing attitude, because it presumes that Section 5 always has been a vehicle for racial entitlement.

For a Supreme Court justice to suggest that citizens of color in 2012 face no genuine discrimination in voting – that congressional efforts to prevent such discrimination amount to undeserved favorable treatment of black and brown people – is misguided enough. But for a Supreme Court justice to deny that racial discrimination in voting ever justified Section 5’s legal remedy is especially disheartening. One would have thought that we could all agree, at least, about the importance of acknowledging our country’s difficult and unfortunate history of racial disenfranchisement.

In addition to Justice Scalia’s comment, Chief Justice John Roberts during the argument suggested that the federal government’s continued support for Section 5 reflected a view that the South was “more racist” than the rest of the country. Like Justice Scalia, the chief justice was probing government motives that are none of the Supreme Court’s business. He was also giving voice to the right-wing lament that accusations of racism are worse than the thing itself.

If the Court this June wipes out the most important, successful weapon against racial discrimination in voting that our government has ever produced, Justice Scalia and Chief Justice Roberts will likely speak in bland legalese, if they say anything at all. We should remember, on that day, what they said this week, in the heat of argument; and we should ask ourselves whether our constitutional ideals of racial equality and universal suffrage deserve better stewards.