Sometimes, in a Supreme Court argument, a single phrase can speak volumes. Justice Anthony M. Kennedy, the one member of the Court who bore the most watching because the other eight seemed clearly to divide evenly, used the phrase “trusteeship of the United States government” as a shorthand way to describe how he views the regime set up by the Voting Rights Act of 1965 works. Of course, he meant it as a denunciation. If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed. But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more. The argument Wednesday in one of the most important cases of the Court’s current Term — a hearing that ran seventeen minutes longer than the allotted hour — left no doubt that four of the Justices (and maybe Kennedy with them) are just as troubled as they were four years ago when they last lambasted the selective enforcement approach mandated by history’s most successful civil rights law. Equally, there was no doubt that four Justices — including the two newest members — were prepared to let Congress have its way with the twenty-five-year extension of the law.
Naturally, that meant the potential swing vote would be held by Justice Kennedy. His heart evidently was with the sentiment that Congress’s failure to make the law’s key Section 5 reach more widely and its failure to change the Section 4 formula by which states and local governments get covered should lead the Court to strike down one or both of those provisions.
Kennedy most clearly displayed that sentiment when he put a portentous question to the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr. It was a rather peculiarly worded question, but its thrust was very clear. If Alabama wants to put up monuments to the heroes of civil rights, in order to “acknowledge the wrongs of its past,” the Justice asked, ”is it better off doing it if it’s an own independent sovereign or if it’s under the trusteeship of the United States government?”
Verrilli, who had just told Kennedy that the government does respect the system of American federalism, had no direct answer to the tougher question. He felt a need in response to repeat the claim that Congress had acted cautiously in 2006 when it reenacted the 1965 law, and took “a more prudent course, even given the federalism concerns.”
But those who had attended the Court’s last hearing on the constitutionality of the 1965 law, four years ago, could recall that Kennedy was equally disturbed then about the threat he saw to states’ rights, and yet the Court concluded that case without striking down the law. It found a way to ease the burden of the law, for local governments, and left it at that.