Barely a minute into a U.S. Supreme Court hearing, liberal justices began a strategic barrage of questions that came down to this: Why should a time-honored plank of the 1965 Voting Rights Act be invalidated in a case from Alabama with its history of racial discrimination? What followed constituted a classic example of how justices can try to use oral arguments to dramatic effect and influence a swing vote justice. Key players were Elena Kagan and Sonia Sotomayor, appointees of President Barack Obama and the newest members of the bench. The likely target of their remarks: Anthony Kennedy, a conservative who is often the decisive fifth vote on racial dilemmas. “Think about this state that you’re representing,” Elena Kagan told the lawyer arguing against the law on Wednesday. “It’s about a quarter black, but Alabama has no black statewide elected officials.” Focusing on Shelby County, Alabama, the southern locale that brought the case, Sotomayor asked, “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Those liberals were addressing lawyer Bert Rein, but their comments seemed aimed more at Kennedy, often the swing vote on the nine-member court. While appearing overall open to Shelby County’s claims, Kennedy quickly picked up on their line of inquiry, asking Rein how a county with a record of bias would be “injured” by the 1965 provision that was intended to prevent discrimination.
One of the most closely watched disputes of the term, the case centers on the civil rights-era law that broadly prohibited poll taxes, literacy tests and other measures that prevented blacks from voting. In the 1960s, such laws existed throughout the country but were more prevalent in the South with its legacy of slavery. Specifically at issue is a provision – designed to be temporary and that Congress has continued to renew – that requires certain states, mainly in the South, to show that any proposed election-law change does not discriminate against African-American, Latino or other minority voters.
The Shelby County challengers say the kind of systematic obstruction that once warranted treating the South differently is over and the screening provision should be struck down.
Convincing Kennedy of lingering problems in Alabama may be liberals’ best hope of stopping the conservative majority from invalidating what’s known as Section 5 of the Voting Rights Act.
The Obama administration, backed by civil rights advocates, says the provision is still needed to deter voter discrimination. Kennedy’s comments during the 75-minute session suggested he was sympathetic to Shelby County’s claim that in modern times different states should not be treated differently. Yet the liberals’ assertions clearly gave him some pause.
The onslaught, particularly from Sotomayor, the first Hispanic justice, and Kagan, known for asking piercing questions, served as a reminder of how the justices often use oral arguments to try to make their cases. These sessions, which let dueling attorneys present their claims at the lectern, give the justices their first chance to lay the groundwork for their ultimate discussion and vote on a case. The nine justices are due to meet in private on Friday to discuss the merits of the case. An opinion can take months to write, and the decision is not likely to be handed down until June.