A thought experiment: Suppose the 50th anniversary of the march for voting rights in Selma, Ala. — Bloody Sunday at the Edmund Pettus Bridge — had fallen on March 7, 2013 rather than the week before last. Eight days before my imaginary anniversary, the Supreme Court heard arguments in Shelby County v. Holder. Four months later, the 5-to-4 decision in that case cut the heart out of the very victory that the Selma marchers had sacrificed to achieve, the Voting Rights Act of 1965. Would the court really have had the nerve to do it, with the memories of the march’s veterans still echoing for the world to hear and with President Obama making perhaps the best speech of his presidency? In the full glare of that public spotlight, would there really have been no member of the Shelby County majority who might have found his way (yes, the five were all men) to a different result?
Perhaps Chief Justice John G. Roberts Jr., whose majority opinion proclaimed that there was no longer sufficient justification for federal oversight of states that not so long before had specialized in finding creative ways to keep black citizens from the polls? Not too likely, given that he invited and set up the Shelby County case with his opinion in a case back in 2009. Or Justice Anthony M. Kennedy, who always seems most comfortable when, by his lights, he’s on the right side of history? Possibly — but states’ rights sound a siren call for him that he has rarely resisted. Not Justice Antonin Scalia, who during the Shelby County argument mocked the fact that both houses of Congress had recently reauthorized the Voting Rights Act by overwhelming majorities — thus proving, according to the justice, that Congress was in the grip of political correctness? Justice Samuel A. Alito Jr.? Not a chance. Justice Clarence Thomas? Sigh.