Justice Kennedy proves difficult to pin down in Shelby County oral arguments

February 28, 2013

Civil Rights ThemeYesterday were the long awaited oral arguments for Shelby County v. Holder, the Supreme Court case involving a challenge to Section 5 of the Voting Rights Act of 1965.

Previously, I had predicted that the Court would rule 5-4 along ideological lines to reverse the court of appeals’ ruling, which upheld Section 5’s constitutionality.

After the oral arguments, I haven’t changed my prediction, but I am quite a bit more uncertain about how Justice Kennedy will come down.

SCOTUS ClipboardBefore I get to that, here’s what the other Justices revealed during the arguments.

Probably the views easiest to discern are Justice Scalia’s.  As has already been widely reported, Scalia dismissingly labeled Section 5 as a “racial entitlement” (“it’s been written about”), and further claimed that it’s nigh impossible politically to remove these “racial entitlements” once they are in place, even if they aren’t useful.  The heavy implication here was that it was the Court’s job to remove this “racial entitlement” that outlived its usefulness.

On the liberal side, Justice Sotomayor aggressively questioned the attorney for Shelby County almost immediately after arguments began.

First, she raised several questions about whether Shelby County even has standing to bring the challenge to Congress’ “pre-existing coverage formula” used to determine which jurisdictions are subject to federal oversight under Section 5.

Why would Shelby County lack standing?  According to Justice Sotomayor, Shelby County is “a county whose record [on racial voter discrimination] is the epitome of what caused the passage of this law to start with.”  As such, no matter how the coverage formula was re-determined, Shelby County would also find itself covered.

Justices Ginsburg and Kagan largely echoed these sentiments (Kagan herself told Shelby County’s attorney that “you’re objecting to a formula, but under any formula that Congress could devise, it would capture Alabama”).

Justices Alito and Scalia seemingly came to the attorney’s rescue on this issue, with each Justice posing a hypothetical that attempted to paint Section 5 as an arbitrarily applied law.

Justice Sotomayor was, however, quick to discredit these hypotheticals as inapt since there was a significant record of evidence collected by Congress to show “what Alabama has done to earn its place on the list.”

Justice Breyer was less aggressive than his fellow liberals in his approach – which often was to clarify issues or questions raised by him or a fellow Justice.

Nevertheless, I would still firmly place him in the same camp as the rest of the liberals in voting to uphold the law because of a metaphor that he used through the arguments: that voter discrimination is a “disease” that was easy to find when the VRA was passed in 1965, but the “disease” has “evolved” since then, making it more difficult to recognize.  Section 5, according to Breyer, is an effective means to cure the disease, but “the disease is still there in the State.”  As a consequence, Section 5 is still needed to fight voter discrimination.

That leaves us with Justices Thomas and Kennedy, and Chief Justice Roberts.

Justice Thomas, once again, refrained from speaking during oral arguments, but, based on his dissent in 2009’s Northwest Austin Mun. Utility Dist. No. One v. Holder, it seems almost certain that he will vote to strike down Section 5.

The Chief Justice was mostly silent until Solicitor General Verrilli started arguing in defense of Section 5 on behalf of the federal government, at which point, Roberts barraged Verrilli with statistics about voter discrimination in Massachusetts being comparable to those states covered by Section 5.

The obvious point to these statistics was to imply that Congress’ “pre-existing coverage formula” was flawed, unconstitutionally so in the Chief Justice’s view.

With Roberts in the faction in favor of striking down Section 5, we’re at a 4-4 split.

As I stated at the beginning of this piece, I’m not entirely sure how Kennedy will vote.

On the one hand, he did reveal serious concerns about the constitutionality of Section 5, specifically how it singles out some states to be under “trusteeship of the United States Government” while other, arguably similarly situated states, are left alone.

On the other hand, Kennedy was not nearly as aggressive as the other conservatives in his questioning, and, more importantly, he seemed notably intrigued with Sotomayor’s suggestion that Shelby County is an improper party to be challenging the law.

Both of these elements are the source of my ambiguity about Justice Kennedy’s vote: he demonstrated during oral arguments that he is open to persuasion from both sides, so how he votes may well come down to which side is more persuasive during deliberations.

While that may provide Court observers with quite a bit to write about, it makes for a difficult prediction.

Although I’m sticking with my original prediction, Justice Kennedy’s vote could just as easily be predicted with the flip of a coin.

Shelby County v. Holder

Question Presented

Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fifteenth Amendment and thus violated the Tenth Amendment and Article IV of the United States Constitution.

Lower Court’s Decision

Section 5 is constitutional.

My Prediction

REVERSE 5-4 (Majority:  Roberts, Alito, Kennedy, Scalia, and Thomas; Dissent: Ginsburg, Breyer, Sotomayor, and Kagan).

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