I had to plumb memories of a SchoolHouse Rock video this morning to sort out exactly what was so out of place at the Supreme Court during Wednesday morning’s oral argument. The justices tangled with lawyers over the future of the Voting Rights Act — landmark civil rights legislation that has served as a bulwark against efforts to disenfranchise racial minorities for nearly five decades.
Congress has reauthorized the Voting Rights Act four times, most recently in 2006. The debate at the Court yesterday centered on Section 5, the provision that requires nine states and select counties in seven other states to get approval from the Department of Justice before they undertake “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting" in any "covered jurisdiction." Voter ID laws, changes to early voting and any other electoral tweak must be “precleared” to guard against changes that would have a racially discriminatory impact in these states and localities.
Times have changed, the petitioners argue. Racism has waned. The nation has re-elected a black president. There is no need to maintain a preclearance system that stigmatizes certain states with a badge of dishonor.
Some justices were quick to agree with the petitioners’ claim. Justice Scalia’s sharp tongue surprised the audience when he likened the Voting Rights Act to a “racial entitlement” that the Court is in a unique position to scrap. (I critique this contention in a post at the Economist today.) Justices who are usually keen to defer to the wisdom of legislative majorities seem anxious in this case to second-guess a 98-0 Senate vote.
As the old SchoolHouse rock explains, though, it is not the Court’s job to legislate. It is the Court’s job to interpret laws and determine when they violate the Constitution, but fact-finding is the mission of the legislative branch.
Hurry, hurry, hurry to ring number two
See what they do in the Congress
Passing laws and juggling bills
Oh, it's quite a thrill in the Congress
Focus your attention on ring number three
The Judiciary's in the spotlight
The courts take the law and they tame the crimes
Balancing the wrongs with your rights
No one part can be
More powerful than any other is
Each controls the other you see
And that's what we call checks and balances
The message is admittedly a little simplistic, and I don’t mean to claim that the federal government’s institutional duties are often as easily pigeonholed as this video suggests. But the Voting Rights Act has been vetted and overwhelmingly approved by Congress for good reason. Justice Sotomayor hit just the right note in her retort to the petitioner’s case.
Counsel, the reason Section 5 was created was because States were moving faster than litigation permitted to catch the new forms of discriminatory practices that were being developed. As the courts struck down one form, the States would find another. And basically, Justice Ginsburg calls it secondary. I don't know that I'd call anything secondary or primary. Discrimination is discrimination. And what Congress said is it continues, not in terms of voter numbers, but in terms of examples of other ways to disenfranchise voters, like moving a voting booth from a convenient location for all voters to a place that historically has been known for discrimination.