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February 27, 2013

Scotus justices tip hands on voting rights

#Scotus questioning during the #Voting Rights Act arguments Wednesday provided definite clues as to where individual justices could well be coming from. Seems like a 5-4 decision in the making.

Check out, for instance, this well-prepared one-two punch from Chief Justice John Roberts, Jr., directed at Solicitor General Donald Verrilli, Jr.:

ROBERTS: Do you know which state has the worst ratio of white voter turnout to African American voter turnout?
VERRILLI: I do not.
ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi....which state has the greatest disparity in registration between white and African American?
VERRILLI: I do not know that.
ROBERTS: Massachusetts.

Ooh, snap!

This is a classic set-up, prepared in advance by the chief justice. Only someone who's got some motivation to score a point would invest in setting such a trap. Sounds like the chief justice seems inclined to join Justice Antonin Scalia, who reliably tipped his hand any number of occasions, as in this extended commentary regarding the overwhelming congressional approval of the law:

SCALIA: I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial
entitlement...Whenever a society adopts racial entitlements, it is very difficult
to get out of them through the normal political processes....That's the concern that those of us who -- who have some questions about this statute have. It's a concern that this is not the kind of a question you can leave to Congress.

No doubt where he's coming from. That's two votes.

So, too, with Justice Samuel Alito, whose strike-it-down inclinations were summed up when he stated:

ALITO: There is no question that the Voting Rights Act has done enormous good...But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage?

That's three votes.

Justice Clarence Thomas's vote can likewise be predicted, even though his utterances during the hour-long oral argument were confined to:


That's four votes.

Tellingly, Justice Anthony Kennedy sounded skeptical, as well, as when he attacked the seemingly out-of-date formula for determining which states are covered by the law's pre-clearance requirements.

KENNEDY: If Congress is going to single out separate states by name, it should do it by name. If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.

That, perhaps, is five votes.

From the other side, too, justices tipped their hands; in particular, Justice Sonia Sotomayor.

SOTOMAYOR: Do you think that racial discrimination in voting has ended, that there is none anywhere? ...Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?

Justice Elena Kagan sounded close to Sotomayor's position, telling the attorney for Shelby County, Alabama:

KAGAN: But think about this state that you're representing, it's about a quarter black, but Alabama has no black statewide elected officials. If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one state on the list.





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"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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