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Debate Over Southern Racism and Congressional Power

U.S. Supreme Court building during the February 27 hearing for Shelby v. Holder.
Brentin Mock

After sitting in the U.S. Supreme Court building listening to 90 minutes of oral arguments in Shelby v. Holder, it’s still hard to predict how the high court will rule on Section 5 of the Voting Rights Act. As we’ve reported, Shelby County, Ala., is challenging the constitutionality of Section 5, which requires certain states, counties and towns with strong legacies of race-based voting discrimination to obtain federal approval (“preclearance”) for every change they want to make to their election laws. 

During the hearing Section 5 supporters on the Supreme bench made a good case for why Shelby makes a poor witness given the county’s recent voting rights violations. 

Meanwhile, Act skeptics on the bench repeatedly wondered if Section 5 should either be applied to the entire country or nowhere at all. Attorneys representing the federal government argued that blanket Section 5 coverage is not what Congress intended or desired, as it would weaken enforcement by spreading the Justice Department too thin.

As usual, the lone Black Supreme Court justice, Clarence Thomas—whose own seat was made possible by historic civil and voting rights victories—said absolutely nothing.

The Court isn’t expected to make an official judgment until this summer. In the meantime, five takeaways from yesterday’s hearing:

According to Justice Scalia, The Supreme Court doesn’t like to talk about race.

Late in the hearing Justice Antonin Scalia announced that “this Court doesn’t like to get involved [in] racial questions such as this one.” Congress should deal them, he reasoned. But Scalia contradicted himself when he attributed the 2006 congressional reauthorization of the Voting Rights Act and its 98-0 favorability among the Senate to “a phenomenon that is called perpetuation of racial entitlement” rather than a matter of doing the right thing. 

After the hearing, Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights, called Scalia’s comment “outrageously” insensitive. ”It just shows a lack of comprehension of where we are as a nation,” she continued. “No one is saying, ‘Treat me special.’ No one is saying, ‘Double my vote.’ We are just saying, ‘Make it so we’re not discriminated against.’ That’s all the law says. How does that become an entitlement?”

Shelby County’s lawyer believes that race-based voter discrimination no longer exists.

With a straight face Shelby’s attorney Bert W. Rein told the justices, “I think the problem to which the Voting Rights Act was addressed is solved.”

“Who gets to make that judgment?” Justice Elena Kagan challenged.

Congress could address the issue, Rein said, but it was up to the Supreme Court to “determine whether the problem indeed has been solved.”

Kagan shot back: “Well, that’s a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved.”

Later it became apparent that Rein didn’t understand that racism was the fundamental problem that Section 5 of the Voting Rights Act was designed to address. He seemed to think Section 5 was just about the historic practice of requiring Black people—who had been legally barred from reading throughout their enslavement—to take literacy tests to determine their voting eligibility.

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