The Voting Rights Act is imperiled by the conservative activist Justices of the U.S. Supreme Court


Posted by AzBlueMeanie:

On the same day that a statue honoring Civil Rights icon Rosa Parks was unveiled in Statuary Hall at the Capitol, Rosa Parks statue unveiled at Capitol, paying tribute to a woman whose name became synonymous with the Civil Rights Movement, down the street the "Felonious Five" conservative activists of the U.S. Supreme Court were signaling their willingness to legislate their ideological views from the bench and to disregard the legislative judgment of the people's representatives in Congress by striking down the enforcement mechanisms of the crown jewel of the Civil Rights Movement, the Voting Rights Act of 1965, echoing the segregationists' battle cry of "states' rights." Supreme Court conservatives express skepticism over voting law provision:

The Supreme Court’s conservative justices strongly suggested
Wednesday that a key portion of the Voting Rights Act is no longer
justified, and that the time had come for Southern states to be freed
from special federal oversight.

Chief Justice John G. Roberts Jr. asked Solicitor General
Donald B. Verrilli Jr. whether it was the federal government’s
contention that “the citizens in the South are more racist than
citizens in the North.”

Verrilli said that was not the government’s argument, but that
Congress decided in 2006 that Section 5 of the Voting Rights Act was
still needed to protect the voting rights of minorities. The section
requires nine states, mostly in the South, and local governments in
other states to “pre-clear” any changes in voting laws with federal

Justice Antonin Scalia responded by saying flatly
that he thought it was “not the kind of question you can leave to
,” because it was impossible for elected representatives to vote
against such a measure.

The act has come to be seen as a “racial
entitlement,” Scalia said
, and “I am fairly confident it will be
reenacted in perpetuity” no matter how much progress the states make in
eliminating discrimination.

Verrilli responded that, in the amendments passed after the Civil War,
the Constitution quite clearly gives Congress express power to enforce
voting rights and said it would be “extraordinary” for the court to
second-guess its judgment in reauthorizing the act by nearly unanimous
margins in 2006

The oral arguments, which extended beyond a scheduled hour, revealed the
court at its most ideologically polarized. The court’s four liberals
came armed with statistics about how minority voting rights were still
more threatened in the states singled out in Section 5 than the rest of
the country
, and warning about the need for judicial restraint. [You know, what conservative claim they support.]

When Burt Rein, lawyer for an Alabama county that is the named challenger, said the court must conclude that Congress was wrong to find that reauthorization of Section 5 was necessary, Justice Elena Kagan responded:

“That’s a big new power you’ve given us.”

Justice Sonia Sotomayor said, “Why should we make that judgment and not Congress?”

* * *

The liberal justices told Rein that his client and the state of
Alabama were not the success stories that would make the law seem

Justice Ruth Bader Ginsburg said that no one
contested that conditions in the South had changed, but that
Mississippi, Alabama and Louisiana were still the states where
violations of the Voting Rights Act were most likely to occur.

Kagan said that almost any formula Congress devised to indicate where Section 5 was still needed “would capture Alabama.”

But Roberts, questioning Verrilli, said voter registration and turnout among blacks in Alabama was better than in Massachusetts.

Samuel A. Alito Jr. said it made no sense that some states were covered
and others were not, and asked why the law should apply to Virginia but
not Tennessee or some places in the Bronx rather than Brooklyn.

This is why, "Scalito." The U.S. Constitution, Article 1, Section 4 provides in its second clause, "the Congress may at any time by law make or alter such [state] regulations, except as to the places of choosing Senators." (The Senators provision was altered by the 17th Amedment). More importantly, the 15th Amendment, recognizing the right to vote, provides:

Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The Congress is vested with the constitutional authority to determine how best to protect "the privileges or immunities of citizens of the United States" under the 14th Amendment and to secure "the right of citizens of the United States to vote" under the 15th Amendment against the pernicious schemes and artifices by the states to deprive citizens of the United States of their constitutional right to vote. This is the purpose and intent of the Voting Rights Act of 1965.

The Voting Rights Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (i.e., "covered jurisdictions") could not implement any change affecting voting without first obtaining the approval of the Department of Justice, a process known as preclearance. [Section 5.] Other enforcement provisions [Section 2 and Section 4] applied to states and political subdivisions that had used a "device" to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Voting Rights Act, as amended, has been renewed by Congress four times, most recently in 2006.

The Constitution does not vest the U.S. Supreme Court with this legislative authority. It is exclusively the prerogative of Congress. In 2006, Congress compiled over 15,000 pages of evidence and testimony in support of renewing the Voting Rights Act, finding evidence that discrimination in "covered jurisdictions" was an ongoing and substantial concern to the right to vote.

The U.S. Supreme Court reviews cases under the Voting Rights Act under the "rational basis" standard of review. The U.S. Supreme Court does not get to substitute its legislative judgment for the legislative judgment of the people's representatives in Congress. The legislative judgment of Congress, for which there was a rational basis, is entitled to due deference from the Court under the concept of judicial restraint.

The fact that four, and perhaps five Justices of the U.S. Supreme Court appear willing to disregard the Constitution, long-standing judicial precedents, and long-standing rules of judicial review in order to legislate from the bench and to substitute their own ideological views for the legislative judgment of the people's representatives in Congress is an extreme abuse of judicial power.

I would argue that the comments of these conservative activist Justices demonstrates just how far we have not come in the last 50 years. Their words and deeds demonstrate why the Voting Rights Act remains vitally necessary.

UPDATE: Great quote from Steve Benen: "Last summer, during some of Scalia's partisan antics, a constitutional law professor at UCLA said the conservative jurist "has finally jumped the shark."
If that was true in June, I think it's fair to say "perpetuation of
racial entitlement" is proof that Scalia has already taken the skis and
the leather jacket off, but just doesn't care about credibility anymore."