March 2, 2013

Listen to the oral argument in the Voting Rights Act case.

Audio here. There's also a summary there of what the case is about, basically whether Congress has the power to continue to require some states, but not others, to get approval from the federal government before they change any election laws. The states are covered based on a formula that looks at how things were in 1972.

I was especially impressed by something Justice Breyer said at 65:42. Transcript (PDF):
If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out. So in 1965, well, we have history. We have 200 years or perhaps of slavery. We have 80 years or so of legal segregation. We have had 41 years of this statute. And this statute has helped, a lot. So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Now the question is, is it rational to do that? And people could differ on that. And one thing to say is, of course this is aimed at States. What do you think the Civil War was about? Of course it was aimed at treating some States differently than others. And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now?

And now you tell me when does it run out? What is the standard for when it runs out? Never? That's something you have heard people worried about. Does it never run out? Or does it run out, but not yet?

Or do we have a clear case where at least it doesn't run out now?
That's a sharp summary to the question and it's fair, though it leans toward upholding what Congress did. I think Breyer framed his question around something Justice Scalia said earlier — which I think is what "you have heard people worried about" refers to. At 50:30 in the audio, Scalia notes that the Court generally leaves "racial questions such as this one... to Congress." But congressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.
[That increased congressional support] is attributable, 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. 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. You have to show, when you are treating different States differently, that there's a good reason for it.... It's -- it's a concern that this is not the kind of a question you can leave to Congress.
Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act.

62 comments:

dcm said...

judicial activism.

edutcher said...

Breyer sound like a man without a good reason looking for an excuse.

Lem said...

Kagan appears to believe that the election of blacks to state wide office is a showing that racial improvements have been made?

In order to kill the importance of race, some time in the future, you have to show its alive... or something.

Paco Wové said...

So I guess Breyer thinks we have 239 years to go.

Paco Wové said...

I wonder if that's how much Affirmative Action will be deemed "enough".

rcocean said...

Wow, we shouldn't change a 41 years old statue because that would be "changing horses in mid-stream"? So maybe in 2052 we can think about it?

I dunno, seems pretty radical. 200 Years of slavery + 80 years of segregation = 240 years. So I suggest - just to be safe - we keep the voting rights act till the year 2185.

rcocean said...

My math is a little off, but then so is Beyers. Which is understandable, since he's just a lawyer.

Lem said...

Sotomayor says... "discrimination is discrimination".

!?

Ann Althouse said...

"Wow, we shouldn't change a 41 years old statue because that would be "changing horses in mid-stream"? So maybe in 2052 we can think about it? I dunno, seems pretty radical. 200 Years of slavery + 80 years of segregation = 240 years. So I suggest - just to be safe - we keep the voting rights act till the year 2185."

Consider that there is a "bailout" provision. If they keep a clean record for 10 years, they are out.

Really, I would recommend reading more about it and listening to the whole oral argument with an open mind before resorting to this kind of sarcasm.

Considering the depth of the problem the Act was about, common decency counsels restraint.

Lem said...

Formula...

Its baby milk.

Some states are getting formula and they want off of it.

Lem said...

Considering the depth of the problem the Act was about...

Scalias point that the recent 98 to nothing senate vote to continue the act, despite measurable showings of improvement... is very instructive as to what the act is good for now.

Hagar said...

Why?
The "Old South" was done for when the civil rights act of 1964 was signed.
It may have taken a decade to die, but die it did, and it is questionable whether DoJ activities since have made any difference whatever, or, if they have, for good or bad on balance.

Shouting Thomas said...

Considering the depth of the problem the Act was about, common decency counsels restraint.

OK, I'll give you that.

Don't know if I'm really interested enough to find out, but here's something that occurs to me repeatedly, precisely because I read your blog, Althouse.

There was no independent voice back during the civil rights era to state the case of the South. The elite northeastern media had the field entirely to itself. And that media has always been and continues to be bitterly hostile to the South.

So, this question keeps re-occuring to me. "What would things have looked like way back in the mid-60s if the internet existed, and opposition voices, including those from the South, had a forum in which they could make their case?"

rcocean said...

The reason the voting act has almost unanimous support is quite simple. It benefits both parties. Both get to pose as"anti-racists" and both benefit from the creation of "Minority congressional districts".

This means, as a practical matter in the South, that blacks get gerrymandered into a few congressional districts - leaving the rest of the congressional districts as "safe" Republican ones. Its a win-win for both parties on a NATIONAL LEVEL.

Lem said...

Shoot..

Now I'm going to have to look up the Morale Act and the Northwest Ordinance... I do know about the Marshal Plan.

Thank you justice Kennedy.

rcocean said...

"Considering the depth of the problem the Act was about, common decency counsels restraint."

That's right Althouse, "WAS about". Its been 48 years. No one under the age of what? 55? Even remembers the original 1965 Voting rights act. LBJ has been dead for 40 years. Time for the liberals to start living in the 21st Century.

Lem said...

Oooh

Kennedy wants to know how many lawyers are being employed enforcing the act?

Virrelly takes a pass.

somefeller said...

There was no independent voice back during the civil rights era to state the case of the South. The elite northeastern media had the field entirely to itself. And that media has always been and continues to be bitterly hostile to the South.

Gov. George Wallace didn't seem to have trouble getting attention and airtime. And National Review published essays with titles like "Why the South Must Prevail" in the late 50s. But yes, by and large it was hard to find support for segregation among thoughtful commentators by that time. That's progress, not bias.

Michael said...

Professor, I would recommend to you, and to the Justices, a lengthy car trip through the modern south. A couple of weeks of open minded observation would lead you all to conclude that the reasons for your prejudices have expired. You might have a certain nostalgia for the days when your righteousness was earned but you would find it ridiculous in the towns and hamlets of today, a silly costume that is no longer cool, relevant or appealing. You would be ashamed of Madison in Hattiesburg or Greenwood or Kennesaw or Ft. Valley when you observed the relaxed and friendly interaction of the races.

Michael said...
This comment has been removed by the author.
Shouting Thomas said...

You're assuming, somefeller, that the opposition was about "favoring segregation."

I suspect that the Northeast media operated from precisely your viewpoint. And, like you, the Northeast media defined the terms of engage as it saw fit.

I'm suspicious. That's about it. I suspect some other things were going on.

The tactic that you are using was, undoubtedly, being used prior to the Civil War.

somefeller said...

You're assuming, somefeller, that the opposition was about "favoring segregation."

That's because by and large that is what it was about. Admittedly, there were a few libertarians like Barry Goldwater who really did have honest states rights concerns, but that wasn't the reason for most of the opposition.

I'm suspicious. That's about it. I suspect some other things were going on.

There always is something else going on at any given moment. But there usually also is one big thing.

The tactic that you are using was, undoubtedly, being used prior to the Civil War.

Thank you for comparing me to Lincoln and his supporters. That's kind but unnecessary.

n.n said...

It's better to err on the side of Tutsi exploit Hutu exploit Tutsi exploit ... It is an unreconciled paradox that the argument opposing discrimination is also effective to promote discrimination. Well, corruption is to be expected when standards are malleable and therefore selective, especially when manufactured to benefit some minority [special] interest.

Lem said...

Deference to the Congress in racial matters.. let the congress makes these kinds of judgements...

If their spending track record is indicative of anything... its that at least some kind of look at what they do is warranted.

Ann Althouse said...

Judicial restraint or judicial activism. Which is more appropriate here? Why?

chickelit said...

Shouting Thomas noted: And that media has always been and continues to be bitterly hostile to the South.

I think that's true. SCOTUS isn't dealing that even though they may exacerbate that media. I believe that the Justices are beyond the NYT-level of bigotry.

Lem said...

Judicial restraint or judicial activism. Which is more appropriate here? Why?

Its a trap!

Shouting Thomas said...

Thank you for comparing me to Lincoln and his supporters. That's kind but unnecessary.

I wasn't. So, the thanks are unnecessary.

Rabel said...

The requirements of the bail out provision are impossible to meet on a statewide basis.

Lem said...

Then he said, “Oh let not the Lord be angry, and I will speak again but this once. Suppose ten are found there.” He answered, “For the sake of ten I will not destroy it.” And the LORD went his way, when he had finished speaking to Abraham, and Abraham returned to his place.
(Genesis 18:32-33 ESV)

If I reverse engineer that verse... for the sake of 10 I would continue the saving Civil Rights Act?

I have to go but if somebody has an answer I thank you now and read it later.

Sam L. said...

How about something really radical, like investigating those areas covered by the act and seeing if they've fixed themselves? Otherwise, (warning--Cliche) they'll have the Mark of Cain for eternity.

mtrobertsattorney said...

J. Breyer notes that some of the states that are subject to the law "have a better record than some of the states that are out [of thelaw]. A good guess is that the latter include some northern states, perhaps even Wisconsin.

This suggests that Congress was not particularly concerned about any danger to voting rights wnen it voted to renew the law or it would have ammended the law to include those northern states.

I think this make J. Scalia's observation more likely true than not. And it weakens the argument that strong deference is owed to Congress on this question.

mtrobertsattorney said...

J. Breyer notes that some of the states that are subject to the law "have a better record than some of the states that are out [of thelaw]. A good guess is that the latter include some northern states, perhaps even Wisconsin.

This suggests that Congress was not particularly concerned about any danger to voting rights wnen it voted to renew the law or it would have ammended the law to include those northern states.

I think this make J. Scalia's observation more likely true than not. And it weakens the argument that strong deference is owed to Congress on this question.

edutcher said...

somefeller said...

There was no independent voice back during the civil rights era to state the case of the South. The elite northeastern media had the field entirely to itself. And that media has always been and continues to be bitterly hostile to the South.

Gov. George Wallace didn't seem to have trouble getting attention and airtime.


QED.

SteveR said...

Well at some point you are going to have to end these racial preferences and racially based laws. You will always be able to find enough wrong to justify keeping things the way they are but I think they are getting in the way of progress now. Great politics at a time when politicians are widely disrespected is not a good thing. Time to grow up.

somefeller said...

QED.

Ah, yes, George Wallace was just a creation of the liberal media and wasn't a popular voice for Southerners who opposed the civil rights movement. The fact that he won five Southern states in 1968 as a third party candidate clearly showed that he wasn't popular among Southerners of a particular stripe. Clearly.

bagoh20 said...

What is the greater injustice: to leave the imperfect equality that will always ebb and flow around from place to place and group to group as uncontrollable effects of the culture deflect it here and there, or to have the government officially identify and punish innocent citizens as racists due to where they live and what people long-dead did in that place before they were even born?

Is this suppose to be what healing and getting past race looks like?

Chuck Currie said...

"...it's not obvious that the endpoint has been reached..."

How would one know, if one doesn't measure.

Should states with current voting records that are worse than the states currently under the regulation be added in.

It's all spiteful punishment.

Cheers to us all

bagoh20 said...

Do you ever get the feeling that if Jesus came down in N2O filled balloon and announced that racism would now disappear forever that some people would not be pleased?

Illuninati said...

Althouse said:
"Really, I would recommend reading more about it and listening to the whole oral argument with an open mind before resorting to this kind of sarcasm.

Considering the depth of the problem the Act was about, common decency counsels restraint."

Counselor, could you please explain exactly what is the problem we are trying to fix? I live in Texas, and last time I voted I swear I saw lots of black people there voting. I have black neighbors on one side, and on the other side the neighbor's daughter was knocked up by a black athlete who abandoned her and the baby. The white grandparents love the baby. What more do you want?

bagoh20 said...

"Judicial restraint or judicial activism. Which is more appropriate here? Why?"

Whichever moves us away from the ugly past most quickly and completely, and treats modern citizens with equality, the respect to not be judged by the actions of others long gone.

Why? Because it's time, and it's right.

edutcher said...

somefeller said...

QED.

Ah, yes, George Wallace was just a creation of the liberal media and wasn't a popular voice for Southerners who opposed the civil rights movement. The fact that he won five Southern states in 1968 as a third party candidate clearly showed that he wasn't popular among Southerners of a particular stripe. Clearly.


And which stripe was that?

He ran in 1968 pretty much as what would be called today a Libertarian. He decried the loose mores of the hippie era. He wanted to win the Vietnam war, rather than stay there forever.

The fact that the media then and since wants to portray all white Southerners as racists and segregationists and ignored any white moderates at the time, an image some phony folksy clearly wants perpetuated, proves my point.

bagoh20 said...

While we are at it, why don't we boycott those nations in Africa who's long dead ancestors supplied the slave trade? We'll stop when everything is equal over here.

somefeller said...

He ran in 1968 pretty much as what would be called today a Libertarian. He decried the loose mores of the hippie era. He wanted to win the Vietnam war, rather than stay there forever.

That doesn't sound like what Gary Johnson ran on in 2012 or what the Libertarian Party generally supports today.

The fact that the media then and since wants to portray all white Southerners as racists and segregationists and ignored any white moderates at the time, an image some phony folksy clearly wants perpetuated, proves my point.

I didn't say all white Southerners were segregationists. Many were, however, and they were the certain stripe I referred to. Like George Wallace during that era, for example, and he was an example of the anti-civil rights voice that ST said didn't get heard. Wallace's fame and support in some quarters shows that such voices existed and were heard. They weren't supported by Southern moderates and liberals, who together with the dreaded Northeastern liberal media elite, helped create a better South and a better America.

But moving to 2013, while racism exists, it certainly isn't a uniquely Southern phenomenon. (I lived in Massachusetts for a few years and can attest to that.) I'm not sure it's fair to focus the VRA on the South anymore, and if it is, a formula using data from after 1972 should certainly be the standard.

Shouting Thomas said...

That's the second time, somefeller, that you've restated the Northeastern complaint against the South, and insisted that that's all there is.

We could do that all night.

I just read another piece by some writer who restated the entire Northeastern complaint against the South, and insisted that the South is even more evil today than it was in 1965. My personal experience tells me that that is false.

My suspicions are raised. I've got the feeling that there's a whole lot of things Southerners had to say that have nothing to do with your repeated restatement of the Northeastern complaint. I'd like to have heard from them, not you. And, I actually was involved to some extent in the civil right movement in the 60s.

Racism, like adultery, murder, lying and other sins will always exist. I am not an advocate of sin, but I'm not of the opinion that sin will ever cease to exist. Racism is equally distributed among all people and all locations. If we're gonna wait until racism is extinguished before we discard the VRA, we'll be waiting until eternity.

somefeller said...

I've got the feeling that there's a whole lot of things Southerners had to say that have nothing to do with your repeated restatement of the Northeastern complaint.

Okay, what do you think those things were? Also, the idea that most people who were against the civil rights movement were pro-segregation isn't a uniquely Northeastern perspective. Most anti-segregation Southerners would have taken that position. It's also the perspective that links up with Occam's famous razor.

If we're gonna wait until racism is extinguished before we discard the VRA, we'll be waiting until eternity.

Agreed. Which is why I suggested that if the VRA is still needed in 2013, it probably shouldn't single out the South and if it does, it should use a formula that's been updated since 1972.

edutcher said...

somefeller said...

He ran in 1968 pretty much as what would be called today a Libertarian. He decried the loose mores of the hippie era. He wanted to win the Vietnam war, rather than stay there forever.

That doesn't sound like what Gary Johnson ran on in 2012 or what the Libertarian Party generally supports today.


I can't speak for Gary johnson, but i do remember a lot of Wallace's message was of the get government off our backs variety and proved quite popular outside the South.

The fact that the media then and since wants to portray all white Southerners as racists and segregationists and ignored any white moderates at the time, an image some phony folksy clearly wants perpetuated, proves my point.

I didn't say all white Southerners were segregationists. Many were, however, and they were the certain stripe I referred to. Like George Wallace during that era, for example, and he was an example of the anti-civil rights voice that ST said didn't get heard. Wallace's fame and support in some quarters shows that such voices existed and were heard. They weren't supported by Southern moderates and liberals, who together with the dreaded Northeastern liberal media elite, helped create a better South and a better America.


In your dreams.

That kind of America is the mess we have today. And to assume every Southerner who didn't like segregation was the kind of Lefty in the some phony folksy mold is towering arrogance.

The murders of civil rights workers in 1964 changed the mood of the country as a whole, the South included.

What the media really didn't like is that the Republican Southern Strategy was working and Wallace took votes away from Hubert Humphrey, north and south.

Illuninati said...

Shouting Thomas said:
"I just read another piece by some writer who restated the entire Northeastern complaint against the South, and insisted that the South is even more evil today than it was in 1965. My personal experience tells me that that is false."

The liberals/Marxists are profoundly ignorant of science. Before they begin to pontificate about the evils of racism, perhaps they should be required to read Charles Darwin's book THE DESCENT OF MAN. Competition between groups of individuals with differing genetic endowment is an inevitable law of nature just like gravity or electromagnetism. No matter how hard you try, you can not escape it.

Astro said...

Seems to me it worth considering that if the SCOTUS kills this Act, that still leaves Congress the option to write a new, modernized ACT. (Doesn't it?) Which they might do if the majority is really inclined to do so.

rcommal said...

Judicial restraint or judicial activism. Which is more appropriate here? Why?

Althouse, it is distressing to me that because there is no agreement on the definitions (or even common ground in reconciling the differences over the definitions, much less wanting to) in the initial phrase you wrote, I don't see any good answers forthcoming with regard to the two questions that follow. I mean no bullshit here. I wish I could see reality as different, but I don't.

G Joubert said...

Somefeller is right. The Jim Crow south was dreadful. Back when Democrats there ran everything. Now that for the most part Republicans do, not so much.

Laughing Thomas is right, many, many legitimate voices were drowned out. Truly conservative and Libertarian voices I'd guess.

But hey, c'est la vie, goody two shoes social engineering at gunpoint is a lot of fun for the goody two shoes, so lets keep it in perpetuity.

chickelit said...

Justice Breyer wrote: So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Stale metaphor alert. Plus even my equestrian daughter knows you don't change horses in midstream lest you get your boots pissed on.

Richard Dolan said...

To paraphrase the Chief Justice, this business of divvying us up by race debases everything it touches. You see it in this thread, and everywhere else the topic pops up. But there is no way to avoid it -- a willingness to confront the worst in our own history is, in part, what makes Americans different, as well as our insistence on also confronting efforts to profiteer from that same history.

Putting the issue as 'judicial restraint or judicial activism' is not helpful, 120 years after Plessy, 70 years after Korematsu, 60 years after Brown, 40 years after Bakke and now 10 years after Grutter. The courts have been busily drawing and enforcing, accepting or rejecting, racial lines for too long to cop out now.

rcommal said...
This comment has been removed by the author.
rcommal said...

On a separate note--actually, subject--this sentence

"And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out."

is hideous, and one of the best examples of a good argument for bringing back old-style punctuation, specifically hyphens, that I've seen recently.

Dante said...

That's a sharp summary to the question and it's fair, though it leans toward upholding what Congress did.

I don't see why this is Breyer's clear position. I suppose using years as the measuring stick is the indicator, but why years, why not reality?

I find an understanding that years aren't a good measure in the question: 200 years of slavery, 80 years of segregation, 41 years of this control.

And, Or do we have a clear case where at least it doesn't run out now?

That is the test. A clear case. What is the clear case? It doesn't seem to me the case is clear, in Breyer's mind: If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out

So what is the clear evidence to treat states differently? Shall we base it on time? 200 years, 80 years, 40 years, or actual evidence.

It seems like the man is concerned about the evidence for the continuing control of the states.

But, I didn't listen to the audio.

Molly said...

Could Congress enact a law that sets higher income tax rates for residents of some states? What set of facts might make such a law more defensible if it were challenged in the Supreme Court?

sinz52 said...

"So what is the clear evidence to treat states differently? Shall we base it on time? 200 years, 80 years, 40 years, or actual evidence."

It took less time for Israel to establish full diplomatic relations and even friendly relations with Germany, than it's taking us to accept that Southerners today aren't like their grandparents.

Anglelyne said...

Michael: Professor, I would recommend to you, and to the Justices, a lengthy car trip through the modern south. A couple of weeks of open minded observation would lead you all to conclude that the reasons for your prejudices have expired. You might have a certain nostalgia for the days when your righteousness was earned but you would find it ridiculous in the towns and hamlets of today, a silly costume that is no longer cool, relevant or appealing.

Scalia's remarks remind me of something else I've been noticing of late: that the vilification of the South has been amped up in recent years, rather than dialed down in rational response to real conditions. Back in the day, even the most proudly liberal, anti-segregationist Yankees (like my family) simply did not have the hysterical, crudely propagandistic, "big lie" demonizing zeal on display in these latter days. (See, e.g., "Jena 6".)

But of course there is nothing rational about it. If "the South" didn't exist, they'd have to invent it. In fact, they have: as you say, it is an exercise in nostalgia. At least as woolly as the nostalgia of some old Daughter of the Confederacy, and it may in the end, I think, prove to be a good deal more pernicious. There is something peculiarly nasty going on in this re-charged vilification, that has precious little to do with the past and everything to do with the present.

Nathan Alexander said...

"Judicial restraint or judicial activism. Which is more appropriate here? Why?"

Judicial activism in support of increasing liberty is no vice. Judicial restraint in support of maintaining tyranny is no boon.

And you mis-use the terms in the first place: judicial activism is when a judge ignores written law to find justification for a preferred ideological outcome, as demonstrated in any ruling based on European law, "emanations and penumbras" that betray the inalienable Right to Life without due process explicitly written in our Founding Documents, the separation of church and state which was based in a term from a private correspondence, and the "one person, one vote" concept that betrays the federalism explicitly established in the Constitution.

The Supreme Court should look at any new law and uphold it or overturn it based on the original clear meaning/understanding of our Founding Documents. If that doesn't result in the preferred ideological result, so be it: that's why we have the Amendment process.

There doesn't seem to be the same call for restraint to preserve the enumerated rights. Why is that?

Why do Abortion rights and Obamacare and punishing Conservative states for no longer being solid Democrats require more restraint than the Right to Life and the 1st and 2nd Amendments?

You'd think it should be the other way around.

chickelit said...

Anglelyne wrote: Scalia's remarks remind me of something else I've been noticing of late: that the vilification of the South has been amped up in recent years, rather than dialed down in rational response to real conditions.

Also consider the risible "New Confederacy" theory of Andrew Sullivan which was handily put down by George Will. link

Coming from Sullivan (or Ritmo for that matter), such reenactment of the Civil War past is important because it comports with their view of anti-gay and racism today. Never forget that they're trying to conflate the two: racism = anti gay.

Anglelyne said...

sinz52: It took less time for Israel to establish full diplomatic relations and even friendly relations with Germany, than it's taking us to accept that Southerners today aren't like their grandparents.

But the "problem" now isn't that Southerners may or may not be like their grandparents in racial attitudes. (The fact is that Southerners really weren't and aren't much different in their racial attitudes than people in the rest of the country. Most Americans are segregationists in deed, whatever pieties are coming out of their mouths.) The problem is that Southerners are like their grandparents in the ways that have nothing to do with race issues. And that just can't stand.