Roberts and Kennedy led the questioning challenging the Voting Right Act. Justice Sonia Sotomayor led the questioning defending it.
Justice Antonin Scalia attributed the continued congressional reauthorization to a perpetual “racial entitlement” and suggested that it will be renewed into “perpetuity” because members of Congress would never let it lapse for fear for political repercussions.
“I don’t think there is anything to gain by any senator by voting against this Act,” Scalia said. “This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
The purpose of Section 5 was to proactively quash voter discrimination where it’s most likely to emanate, but conservatives argue that it has outlived its purpose and now discriminates against the mostly southern regions covered.
If we learned anything from 2010 and 2012, I'd like to think we learned that not only is Section 5 critical to holding free and fair elections, but that it should be expanded, not tossed out. Justice Scalia's remarks reinforce how important it is that this provision be preserved, since he sees voting rights as some sort of "entitlement" --at least, for some people.
Update: Here is the transcript of his remarks, courtesy of Daily Kos:
JUSTICE SCALIA: ...This Court doesn't like to get involved in -- in racial questions such as this one. It's something that can be left -- left to Congress.
The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it 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.
That's the -- that's the concern that those of us who -- who have some questions about this statute have. It's -- it's a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the Voting Rights Act.
Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?
Yeah, the name is wonderful. It's the foundation of that thing we call democracy.