[EL] Oral Argument and Justice Kennedy

[Larry/Cinthia Ottinger]

Rick,

 

I listened to oral argument at the Court yesterday.

 

I don't think there's any question about Chief Justice Roberts' views as
evidenced by his repeatedly hostile questioning.  As one jarring example,
the transcript confirms that this self-described "umpire of balls and
strikes" actually asked the Solicitor General of the United States whether
the United States was asserting that citizens in the south were more racist
than those in the north.  Chief Justice Roberts was outdone only by Justice
Scalia, from whom such remarks may be more expected though no less
disturbing.  Thus, Justice Scalia went off on a rant attributing the
overwhelming reauthorization of the VRA by Congress to a "phenomenon that is
called perpetuation of racial entitlement."  

 

Thus, the ultimate decision rests with Justice Kennedy.  Your points about
Justice Kennedy, including in particular his strong feelings about the
formula for covered jurisdictions and state sovereignty, certainly ring true
but wanted to add a few other observations.  

 

Justice Kennedy was looking for reinforcement from Mr. Rein with respect to
his characterization of and concern with the formula, but didn't get it.  To
the contrary, both Justices Kennedy and Scalia expressed surprise that
petitioner was not arguing that the formula was "reverse engineered" to
target specific, pre-selected states and thus violated the constitutional
"equal footing doctrine."  While Mr. Rein agreed that it would not proper to
target specific states, he said: "First of all,  I don't accept that it was,
quote, 'reverse engineered.'" Mr. Rein instead agreed with Justice Breyer's
characterization of what Congress did in the most recent reauthorization as
simply extending the VRA and then went on to explain that the formula that
Congress devised back in 1964 was at least then a rational test to get at
"where the discrimination is ripe."  Mr. Rein concluded his initial and
primary response on this topic by saying that there is "no record" that
members of Congress "made up a list of jurisdictions in [their] heads" and
then realized the old formula would cover those jurisdictions and do the
trick.

 

Justice Kennedy also more than once sought record evidence that Section 2
would provide an effective remedy in lieu of Section 5, as Justice Kennedy
certainly was disposed to believe.  While Mr. Rein supported Justice
Kennedy's argument his response was not clear or convincing.  Indeed,
Justice Kennedy expressed his tentativeness about making conclusions with
respect to Section 2 as an alternative during Solicitor General Verrilli's
argument, which was far more persuasive and substantive than Mr. Rein's
response.  Thus, Justice Kennedy said "the evidence is very clear that
Section -- that individual suits under Section 2 type litigation were just
insufficient and that Section 5 was utterly necessary in 1965. No doubt
about that.  But with -- with a modern understanding of -- of the dangers of
polling place changes, with prospective injunctions, with preliminary
injunctions, it's not clear -- and -- and with the fact that the Government
itself can commence these suits, it's not clear to me that there's that much
difference in a Section 2 suit now and preclearance. I may be wrong about
that. I don't have statistics for it. That's why we're asking."  Verrilli
drove the point home to Justice Kennedy that the record was insufficient to
reach a conclusion on this topic:  "I really think the Petitioner's argument
that Section 2 is a satisfactory and complete substitute for Section 5 rests
entirely on their ability to demonstrate that preliminary injunctions can do
comparable work to what Section 5 does. They haven't made any effort to do
that. And while I don't have statistics for you, I can tell you that the
Civil Rights Division tells me that it's their understanding that in fewer
than one-quarter of ultimately successful Section 2 suits was there a
preliminary injunction issued. 

So, I don't think that there's a basis, certainly given the weighty question
before this Court of the constitutionality of this law, to the extent the
argument is that Section 2 is a valid substitute for Section 5, I just don't
think that the -- that the Petitioners have given the Court anything that
allows the Court to reach that conclusion."

 

While Justice Kennedy may be predisposed to decide the case for petitioners,
and he neither needs petitioner to confirm his view of the case nor strong
record evidence on Section 2 as a valid substitute, the briefing and oral
argument did not make it easier for him.   The odds may still be that
Justice Kennedy decides against the formula that will de facto eliminate
Section 5 for the foreseeable future given the intransigence in the current
Congress.  That would be tragic.  However, the argument certainly gave
reason for some hope in this regard.  Knowing the importance of this case,
which clearly will be part of his legacy, Justice Kennedy possibly could
feel some professional, personal and institutional constraints.

 

Thanks,

 

Larry    

 

This is a personal message not on behalf of any organization.

 

 

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