The Effects on Voting Laws after the Shelby v Holder Supreme Court Ruling - 9
Verrilli was further questioned, and in some cases grilled by Justices Kennedy, Scalia, Alito, and Breyer mainly reiterating the Respondent's beliefs that the gist of the case was "to maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions" when he submitted on behalf of the Respondent that the matter at hand is "still true now," reiterating "that Congress wasn't writing on a blank slate in 2006," and then going on to say that "Congress was making a judgment about whether this formula, which everyone agrees, and in fact Mr. Rein's case depends on the proposition that Section 5 was a big success," might demonstrate for the Petitioner that plausibly, it's no longer needed in today's environment, when Justice Scalia made a statement that has been found by many to be the most controversial of the proceedings.
At the conclusion of Verrilli's somewhat sarcastic "big success" statement, Justice Scalia regained the floor and started by verbalizing the following: "Well, maybe it was making that judgment, Mr. Verrilli. But that's… that's a problem that I have. This Court doesn't like to get involved in… in racial questions such as this one." It's something that can be left… left to Congress." He went on to contend that the Act's renewals in Congress were always reenacted by landslide decisions in a bi-partisan fashion, including the last enactment which granted it a 25-year extension with "not a single vote in the Senate against it. And the House is pretty much the same."
He further said that he didn't believe it was "attributable to the fact that it is so much clearer now that we need this." But rather it was "very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."
Justice Scalia also stated that "I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless… unless a court can say it does not comport with the Constitution." Justice Scalia completed his statement by somewhat cynically stating "Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"
To read about the controversy Justice Scalia's above remarks initiated, click here to read an article on my Florida blog.
At this juncture, Justice Roberts told Verrilli that he'd be granted an additional five minutes to which Verrilli responded, "Thank you. I may need it for that question."
The Solicitor General then addressed Justice Scalia's comments by reiterating most of the points that already were presented and continued to present his argument while being further questioned by Justices Scalia, Roberts, and Kennedy. Toward the end of Verrilli's testimony Justice Alito asked the question. "Is it your position that this would be a different case if it were brought by, let's say, a county in Alaska as opposed to Shelby County, Alabama?" to which Verrilli answered no and explained the Respondent's position to Shelby County's challenge by summing it up as follows:
They've brought a facial challenge. We… recognize that it's a facial challenge. We're defending it as a facial challenge, but our point is that the facial challenge can't succeed because they are able to point out that there may be some other jurisdictions that ought not to be appropriately covered, and that's especially true because there is a tailoring mechanism in the statute. And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge. That's how we feel.
Upon completion of that statement Chief Justice Roberts Thanked Solicitor General Verrilli for his testimony and excused him pending the next witness, Debo P. Adegbile, Esq. an attorney with the NAACP Legal Defense Fund in New York City on behalf of Respondents Bobby Pierson, et al.
Next: Supreme Court Oral Argument Highlights and Excerpts, (continued) Click here to go to page 10