“This is not the kind of a question you can leave to Congress,” Justice Antonin Scalia pronounced during a Supreme Court argument recently.
The subject was the Voting Rights Act, one of the most successful pieces of civil rights legislation in U.S. history, and in particular its Section 5. That provision requires nine states and assorted jurisdictions in seven others to win Justice Department approval before changing their voting laws. The burden is on these “covered” jurisdictions, unlike the rest of the country, to prove that such changes won’t adversely affect the right of African Americans and other minorities to vote. Shelby County, Ala., was in court arguing that this pre-clearance requirement is an unfair infringement on Alabama’s sovereignty.
Congress adopted the Voting Rights Act in 1965 and has reauthorized it four times since, most recently in 2006.
The reauthorization in 2006 was based on a voluminous record — thousands of pages of evidence — showing that the covered jurisdictions have a propensity toward discriminatory rules. The Senate agreed by a vote of 98 to 0; the House, 390 to 33.
“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,” Justice Elena Kagan said, in what might seem a self-evident point.
But not to Justice Scalia. “Or decided that perhaps they’d better not vote against, that there’s ... none of their interests in voting against it,” he said. Later he elaborated on why he feels free to dismiss this particular congressional action: “I don’t think there is anything to be gained by any senator to vote against continuation of this act. ... They are going to lose votes if they do not re-enact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”
This is a stunning line of argumentation.
Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in the argument no grounds for the court to claim superior wisdom on that question.