Thus, what was most alarming in this recent hearing was the apparent willingness of some of the justices (Antonin Scalia and Samuel Alito, especially, but also Anthony Kennedy; Clarence Thomas, as usual, was silent) to try to second-guess Congress’ determination that Section 5 continues to constitute an important tool in ensuring minorities’ right to vote. Instead, what you heard were several justices nakedly expressly their own skepticism about the efficacy of the Act, speculating about Congress’ motivation in reauthorizing the act. They even supplanted the legislative record with their own ad hoc views about whether intentional discrimination still exists, and about how and whether Section 5 is effective. In several feisty exchanges, Justices Ruth Bader Ginsburg, Stephen Breyer and David Souter repeatedly sought to draw their more conservative colleagues away from speculative musings and back to the facts developed in the record of the case.
This, I fear, has become the nature of the discourse on race on the current the Supreme Court. Conservative justices press their own view about the state of race and discrimination, and the moderate wing of the Court valiantly tries to focus the justices’ attention on the record before them. But who needs facts, when you just, well, know? Remember Chief Justice John Roberts’ simple bromide in striking down affirmative action programs in pupil placement in Seattle and Louisville cases two years ago: “The way to stop racial discrimination is to stop discriminating on the basis of race.” Well, how does he know? In fact, a number of questions asked by the chief justice on Wednesday in the latest challenge to the Voting Rights Act suggest that he knows very little about how racial discrimination works and that he’s unlikely to be better positioned than Congress, voting rights lawyers or minorities living in jurisdictions with a history of discrimination to know how best to counter discriminatory efforts undertaken by covered jurisdictions. Rather than deal with the 15,000-page record amassed by Congress in reauthorizing Section 5, the chief justice reduced the controversy to simplicities, like this question he posed to the lawyer for the NAACP Legal Defense Fund: “Would you say that Southern states are more likely to discriminate against minority voters than Northern states?” Yikes. These, I presume, are the “balls and strikes” that then-Chief Justice nominee Roberts promised he would call as a judicial “umpire.”
Given the voluminous record compiled by Congress, and the specificity of Congress’ findings about the existence of ongoing discrimination in voting, the challenge before the court today is as much about the act’s constitutionality as it is about Congress’ power to identify a problem, amass evidence and pass legislation without second-guessing by the court.
The case will be most certainly be decided by late June when the court’s term ends. By then, we’ll be focused on Barack Obama’s first six months in office, and we may once again pay scant attention to the potential dismantling of the one piece of legislation without which there would be no President Obama.
Sherrilyn A. Ifill is a professor at the University of Maryland School of Law and a civil rights lawyer.