Wednesday, April 29, 2009
The Court held oral argument today in Northwest Austin Municipal Util. District 1 v. Holder, in which one of the two issues is the constitutionality of the Voting Rights Act of 1965:
In the oral argument, transcript here, there was much discussion about the Congressional evidence, about whether or not "things" have changed in terms of race relations, and about geographic distinctions.
Near the beginning of the argument, Justice Souter responded to Gregory Coleman, arguing for the Appellant utility district:
of some 600 interpositions by the -- by the Justice Department on section 5 proceedings, section 5 objections, over a period of about 20 years. We got a record that about two-thirds of them were based on the Justice Department's view that it was intentional discrimination. We've got something like 600 section 2 lawsuits over the same period of time. The point that I'm getting at is I don't understand, with a record like that, how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that
they have radically changed to the point that this becomes an unconstitutional section 5 exercise within Congress's judgment just seems to me to -- to deny the empirical reality.
Transcript at 15-16. A bit later, Coleman addresses the flaws in the Congressional fact-finding by pointing to the distinctions between jurisdictions: "What Congress didn't do," he argued, "is look at specific noncovered jurisdictions" and compare them to covered jurisdictions.
Neal K. Katyal, Deputy Solicitor General, argued that the Congressional process was a model:
Transcript at 27. Coleman had quite a different portrait of Congressional action, stating, in a response to Justice Ginsburg that "it is important for the Court to understand and to consider the fact that Congress really thumbed its nose at the Court in terms of rejecting the constitutional concerns that the Court raised" in previous cases. Transcript at 64.
Most Court observers, ConLawProfs, and Con Law students predict that Justice Kennedy will be the deciding Justice, so his comments merit special attention. In considering the Congressional scheme in which some jurisdictions are covered and others are not, Kennedy focused on the disparity amongst states:
Transcript at 34. Later, Justice Roberts phrased a very similar question differently:
Transcript at 48.
This is the last oral argument of the term, with a decision expected in late June.