Think Progress has cut through the Teal Deer of the latest Supreme Court case to show us that Antonin Scalia does not pass up an opportunity to play the “special rights” card.
Okay, the WordPress video insert doesn’t seem to be working today, so here’s the link to the video on YouTube:
Antonin Scalia said WHAT?!
I’ve pasted a lot of relevant passages from the transcript below the jump, but the Golden Heap of Nonsense is bolded.
JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that’s true?
MR. REIN: No. I think the Court has to -
JUSTICE KAGAN: Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 Senators, including every Senator from a covered State, who decided that there was a continuing need for this piece of legislation.
JUSTICE SCALIA: Or decided that perhaps they’d better not vote against it, that there’s nothing, that there’s no — none of their interests in voting against it.
MR. REIN: But the focus of the Congress in 1965 and in Katzenbach in 1964 and in Katzenbach was on registration and voting, precluding -
JUSTICE SOTOMAYOR: It was on voter dilution as well. It had already evolved away from that, or started to.
MR. REIN: I beg your pardon, but I think, Justice Sotomayor, that this Court has never decidedthat the Fifteenth Amendment governs vote dilution. It has said the Fourteenth Amendment does, but the original enactment was under the Fifteenth Amendment.
JUSTICE KAGAN: Well, the Fifteenth Amendment says “denial or abridgement.” What would ”abridgement” mean except for dilution?
MR. REIN: Well, “abridgement” might mean, for example, I let you vote in one election but not in another; for example, separate primary rules from election rules. Abridgement can be done in many ways. I think dilution is a different concept.
We’re not saying that dilution isn’t covered by the Fourteenth Amendment, but I was responding to Justice Breyer in saying there was an old disease and that disease is cured. If you want to label it ”disease” and generalize it, you can say, well, the new disease is still a disease.
JUSTICE SCALIA: I thought — I thought the same thing. I thought it’s sort of extraordinary to say Congress can just pick out, we want to hit these eight States, it doesn’t matter what formula we use; so long as we want to hit these eight States, that’s good enough and that makes it constitutional. I doubt that that’s true.
MR. REIN: Justice Scalia, I agree with that. What I was saying here is that Congress did -
JUSTICE SOTOMAYOR: Why? Why does Congress have to fix any problem immediately?
JUSTICE KENNEDY: I would like to hear the answer to the question.
GENERAL VERRILLI: Thank you, Mr. Chief Justice, and may it please the Court: There’s a fundamental point that needs to be
made at the outset. Everyone acknowledges, Petitioner, its amici, this Court in Northwest Austin, that the Voting Rights Act made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century. Section 5 preclearance was the principal engine of that progress. And it has always been true that only a tiny fraction of submissions under Section 5 result in objections. So that progress under Section 5 that follows from that has been as a result of the deterrence and the constraint Section 5 imposes on States and subjurisdictions and not on the actual
enforcement by means of objection.
Now, when Congress faced the question whether to reauthorize Section 5 in 2006, it had to decide whether — whether it could be confident that the attitudes and behaviors in covered jurisdictions had changed enough that that very effective constraint and deterrence could be confidently removed. And Congress had, as Judge Kagan identified earlier, a very substantial record of continuing need before it when it -
CHIEF JUSTICE ROBERTS: Can I ask you just a little bit about that record. Do you know how many submissions there were for preclearance to the Attorney General in 2005?
GENERAL VERRILLI: I don’t know the precise number, but many thousands. That’s true.
CHIEF JUSTICE ROBERTS: 3700. Do you know how many objections the Attorney General lodged?
GENERAL VERRILLI: There was one in that year.
CHIEF JUSTICE ROBERTS: One, so one out of 3700.
GENERAL VERRILLI: But I think — but, Mr. Chief Justice, that is why I made the point a minute ago that the key way in which Section 5 — it has to be the case, everyone agrees, that the significant progress that we’ve made is principally because of Section 5 of the Voting Rights Act. And it has always been true that only a tiny fraction of submissions result in objections.
JUSTICE SCALIA: That will always be true forever into the future. You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers which the Constitution preserves to them. So, since the only reason it’s improved is because of these procedures, we must continue those procedures in perpetuity.
GENERAL VERRILLI: No.
JUSTICE SCALIA: Is that the argument you are making?
GENERAL VERRILLI: That is not the argument. We do not think that -
JUSTICE SCALIA: I thought that was the argument you were just making.
GENERAL VERRILLI: It is not. Congress relied on far more on just the deterrent effect. There was a substantial record based on the number of objections, the types of objections, the findings of -
JUSTICE SCALIA: That’s a different argument.
GENERAL VERRILLI: But they are related.
CHIEF JUSTICE ROBERTS: Just to get the -– do you know which State has the worst ratio of white voter turnout to African American voter turnout?
GENERAL VERRILLI: I do not.
CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -
CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?
GENERAL VERRILLI: I do not know that.
CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.
GENERAL VERRILLI: But when Congress — the choice Congress faced when it — Congress wasn’t writing on a blank slate in 2006, Mr. Chief Justice. It faced a choice. And the choice was whether the conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed, and in view of the record of continuing need and in view of that history, which we acknowledge is not sufficient on its own to justify reenactment, but it’s certainly relevant to the judgment Congress made, because it justifies Congress having made a cautious choice in 2006 to keep the constraint and to keep the deterrence in place.
JUSTICE ALITO: Well, there’s no question that -
JUSTICE SOTOMAYOR: Counsel, in the reauthorization -
JUSTICE ALITO: There’s no question -
CHIEF JUSTICE ROBERTS: Justice Alito.
JUSTICE ALITO: There is no question that the Voting Rights Act has done enormous good. It’s one of the most successful statutes that Congress passed in the twentieth century and one could probably go farther than that. But when Congress decided to reauthorize it in 2006, why wasn’t it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics. But why — why wasn’t that required by the congruence and proportionality standards? Suppose that Congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier. Do you think Katzenbach would have come out the same way?
GENERAL VERRILLI: No, but what Congress did in 2006 was different than what Congress did in 1965. What Congress did — Congress in 2006 was not writing on a clean slate. The judgment had been made what the coverage formula ought to be in 1965, this Court upheld it four separate times over the years, and that it seems to me the question before Congress under congruence and proportionality or the reasonably adapted test in McCull- — or whatever the test is, and under the formula in Northwest Austin is whether the judgment to retain that geographic coverage for a sufficient relation to the problem Congress was trying to target, and Congress did have before it very significant evidence about disproportionate results in Section 2
litigation in covered jurisdictions, and that, we submit, is a substantial basis for Congress to have made the judgment that the coverage formula should be kept in place, particularly given that it does have a bail-in mechanism and it does have a bailout mechanism which allows for tailoring over time.
JUSTICE KENNEDY: This reverse engineering that you seem so proud of, it seems to me that that obscures the — the real purpose of — of the statute. And if Congress is going to single out separate States by name, it should do it by name. If not, it should use criteria that are relevant to the existing — and Congress just didn’t have the time or the energy to do this; it just reenacted it.
GENERAL VERRILLI: I think the — the formula was — was rational and effective in 1965. The Court upheld it then, it upheld it three more times after that.
JUSTICE KENNEDY: Well, the Marshall Plan was very good, too, the Morale Act, the Northwest Ordinance, but times change.
GENERAL VERRILLI: And — but the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed.
JUSTICE GINSBURG: General Verrilli -–
JUSTICE BREYER: What the question -–
JUSTICE GINSBURG: General Verrilli, could you respond to the question that Justice Kennedy asked earlier, which was for why isn’t Section 2 enough now? The Government could bring Section 2 claims if it seeks privately to do. Why isn’t — he asked if it was expensive. You heard the question, so.
GENERAL VERRILLI: Yes. With respect to - start with Katzenbach. Katzenbach made the point that Section 2 litigation wasn’t an effective substitute for Section 5, because what Section 5 does is shift the burden of inertia. And there’s a — I think it is self-evident that Section 2 cannot do the work of Section 5. Take one example: Polling place changes. That in fact is the most frequent type of Section 5 submission, polling place changes. Now, changes in the polling places at the last minute before an election can be a source of great mischief. Closing polling places, moving them to inconvenient locations, et cetera. What Section 5 does is require those kinds of changes to be pre-cleared and on a 60-day calendar which effectively prevents that kind of mischief. And there is no way in the world you could use Section 2 to effectively police that kind of mischief.
JUSTICE KENNEDY: Well, I — I do think the evidence is very clear that Section — that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that.
GENERAL VERRILLI: And I think it remains -
JUSTICE KENNEDY: But with — with a modern understanding of — of the dangers of polling place changes, with prospective injunctions, with preliminary injunctions, it’s not clear — and — and with the fact that the Government itself can commence these suits, it’s not clear to me that there’s that much difference in a Section 2 suit now and preclearance. I may be wrong about that. I don’t have statistics for it. That’s why we’re asking.
GENERAL VERRILLI: I — I don’t — I don’t really think that that conclusion follows. I think these under the — there are thousands and thousands of these under-the-radar screen changes, the polling places and registration techniques, et cetera. And in most of those I submit, Your Honor, the — the cost-benefit ratio is going to be, given the cost of this litigation, which one of the — one of the reasons Katzenbach said Section 5 was necessary, is going to tilt strongly against bringing these suits.
Even with respect to the big ticket items, the big redistrictings, I think the logic Katzenbach holds in that those suits are extremely expensive and they typically result in after-the-fact litigation. Now, it is true, and the Petitioners raised the notion that there could be a preliminary injunction, but I really think the Petitioner’s argument that Section 2 is a satisfactory and complete substitute for Section 5 rests entirely on their ability to demonstrate that preliminary injunctions can do comparable work to what Section 5 does. They haven’t made any effort to do that. And while I don’t have statistics for you, I can tell you that the Civil Rights Division tells me that it’s their understanding that in fewer than one-quarter of ultimately successful Section 2 suits was there a preliminary injunction issued. So, I don’t think that there’s a basis, certainly given the weighty question before this Court of the constitutionality of this law, to the extent the argument is that Section 2 is a valid substitute for
Section 5, I just don’t think that the — that the Petitioners have given the Court anything that allows the Court to reach that conclusion and of course -
JUSTICE KENNEDY: Can you tell us how many attorneys and how many staff in the Justice Department are involved in the preclearance process? Is it 5 or 15?
GENERAL VERRILLI: It’s a — it’s a very substantial number and -
JUSTICE KENNEDY: Well, what does that mean?
GENERAL VERRILLI: It means I don’t know the exact number, Justice Kennedy.
JUSTICE SCALIA: Hundreds? Hundreds? Dozens? What?
GENERAL VERRILLI: I think it’s dozens. And so the — and so it — so it’s a substantial number. It is true in theory that those people could be used to bring Section 2 litigation.
JUSTICE SCALIA: Right.
GENERAL VERRILLI: But that doesn’t answer the mail, I submit, because it’s still — you’re nevergoing to get at all these thousands of under-the-radar changes and you’re still going to be in the position where the question will be whether preliminary injunctions are available to do the job. There is no evidence that that’s true. And I’ll point out there’s a certain irony in the argument that what — that what Petitioner wants is to substitute Section 2 litigation of that kind for the Section 5 process, which is much more efficient and much more — and much speedier, much more efficient and much more cost-effective.
JUSTICE ALITO: Then why shouldn’t it apply everywhere in the country?
GENERAL VERRILLI: Well, because I think Congress made a reasonable judgment that the problem -– that in 2006, that its prior judgments, that there -–that there was more of a risk in the covered jurisdictions continued to be validated by the Section 2 evidence.
JUSTICE ALITO: Well, you do really think there was — that the record in 2006 supports the proposition that — let’s just take the question of changing the location of polling places. That’s a bigger problem in Virginia than in Tennessee, or it’s a
bigger problem in Arizona than Nevada, or in the Bronx as opposed to Brooklyn.
GENERAL VERRILLI: I think the combination of the history, which I concede is not dispositive, but is relevant, because it suggests caution is in order and that’s a reasonable judgment on the part of Congress, the combination of that history and the fact that there is a very significant disproportion in successful Section 2 results in the covered jurisdictions as compared to the rest of the country, that Congress was justified in concluding that there — that it — there was reason to think that there continued to be a serious enough differential problem to justify -–
JUSTICE ALITO: Well, the statistics that I have before me show that in, let’s say the 5 years prior to reauthorization, the gap between success in Section 2 suits in the covered and the non-covered jurisdiction narrowed and eventually was eliminated. Do you disagree with that?
GENERAL VERRILLI: Well, I think the -–the — you have to look at it, and Congress appropriately looked at it through a broader — in a -– in a broader timeframe, and it made judgments. And I think that actually, the — the right way to look at it
is not just the population judgment that Mr. Rein was critical of, the fact is, and I think this is in the Katz amicus brief, that the covered jurisdictions contain only 14 percent of the subjurisdictions in the nation. And so 14 percent of the subjurisdictions in
the nation are generating up to 81 percent of the successful Section 2 litigation. And I think -
CHIEF JUSTICE ROBERTS: General, is it — is it the government’s submission that the citizens in the South are more racist than citizens in the North?
GENERAL VERRILLI: It is not, and I do not know the answer to that, Your Honor, but I do think it was reasonable for Congress–
CHIEF JUSTICE ROBERTS: Well, once you said it is not, and you don’t know the answer to it.
GENERAL VERRILLI: I — it’s not our submission. As an objective matter, I don’t know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need.
CHIEF JUSTICE ROBERTS: A need to do what?
GENERAL VERRILLI: To maintain the deterrent and constraining effect of the Section 5 preclearance process in the covered jurisdictions, and that -
CHIEF JUSTICE ROBERTS: And not — and not impose it on everyone else?
GENERAL VERRILLI: And — that’s right, given the differential in Section 2 litigation, there was a basis for Congress to do that.
JUSTICE BREYER: So what’s the answer? I just want to be sure that I hear your answer to an allegation, argument, an excellent argument, that’s been made, or at least as I’ve picked up, and that is that: Yes, the problem was terrible; it has gotten a lot better; it is not to some degree cured. All right? think there is a kind of common ground. Now then the question is: Well, what about this statute that has a certain formula? One response is: Yes, it has a formula that no longer has tremendous relevance in terms of its characteristic — that is literacy tests. But it still picked out nine States. So, so far, you’re with me. So it was rational when you continue. You know, you don’t sunset it. You just keep it going. You’re not held to quite the same criteria as if you were writing it in the first place. But it does treat States all the same that are somewhat different. One response to that is: Well, this is the Fifteenth Amendment, a special amendment, you know? Maybe you’re right. Then let’s proceed State by State. Let’s look at it State by State. That’s what we normally do, not as applied. All right. Now, I don’t know how satisfactory that answer is. I want to know what your response is as to whether we should — if he’s right -if he’s right that there is an irrationality involved if you were writing it today in treating State A, which is not too discriminatorily worse than apparently
Massachusetts or something. All right? So — so if that’s true, do we respond State by State? Or is this a matter we should consider not as applied, but on its face? I just want to hear what you think about that.
GENERAL VERRILLI: The Court has upheld the formula in four different applications. So the Court has found four different times that the formula was congruent and proportional. And the same kinds of problems that Mr. Rein is identifying now were -–
CHIEF JUSTICE ROBERTS: Well — I’m sorry.
GENERAL VERRILLI: — were true even back in City of Rome, because of course the tests and devices were eliminated by the statute, so no — no jurisdiction could have tests and devices. And City of Rome itself said that the registration problems had been very substantially ameliorated by then, but there were additional kinds of problems. The ascent of these second-generation problems was true in City of Rome as a justification that made it congruent and proportional. And we submit that it’s still true now, that Congress wasn’t writing on a blank slate in 2006. Congress was making a judgment about whether this
formula, which everyone agrees, and in fact Mr. Rein’s case depends on the proposition that Section 5 was a big success.
JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. 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?
CHIEF JUSTICE ROBERTS: You have an extra 5 minutes.
GENERAL VERRILLI: Thank you. I may need it for that question. (Laughter.)
GENERAL VERRILLI: Justice Scalia, there’s a number of things to say. First, we are talking about the enforcement power that the Constitution gives to the Congress to make these judgments to ensure protection of fundamental rights. So this is — this is a situation in which Congress is given a power which is expressly given to it to act upon the States in their sovereign capacity. And it cannot have been lost on the framers of the Fourteenth and Fifteenth Amendments that the power Congress was conferring on them was likely to be exercised in a differential manner because it was, the power was conferred to deal with the problems in the former States of the Confederacy. So with respect to the constitutional grant of power, we do think it is a grant of power to Congress to make these judgments, now of course subject to review by this Court under the standard of Northwest Austin which we agree is an appropriate standard. That’s the first point. The second point is I do — I do say with all due respect, I think it would be extraordinary to -– to look behind the judgment of Congress as expressed in the statutory findings, and — and evaluate the judgment of Congress on the basis of that sort of motive analysis, as opposed to -
JUSTICE SCALIA: We looked behind it in Boerne. I’m not talking about dismissing it. I’m -– I’m talking about looking at it to see whether it makes any sense.
GENERAL VERRILLI: And — but — but I do think that the deference that Congress is owed, as City of Boerne said, “much deference” — Katzenbach said ”much deference.” That deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of Congress to make these kinds of judgments.
These are judgments that assess social conditions. These are predictive judgments about human behavior and they’re predictive judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process. And I would also say I understand your point about entrenchment, Justice Scalia, but certainly with respect to the Senate, you just can’t say that it’s in everybody’s interests — that — that the enforcement of Section 5 is going to make it easier for some of those Senators to win and it’s going to make it harder for some of those Senators to win. And yet they voted unanimously in favor of the statute.
JUSTICE KENNEDY: Do you think the preclearance device could be enacted for the entire United States.
GENERAL VERRILLI: I don’t think there is a record that would substantiate that. But I do think Congress was -–
JUSTICE KENNEDY: And that is because that there is a federalism interest in each State being responsible to ensure that it has a political system that acts in a democratic and a civil and a decent and a proper and a constitutional way.
GENERAL VERRILLI: And we agree with that, we respect that, we acknowledge that Northwest Austin requires an inquiry into that.
Two days later, at the argument
in a big voting rights case, Justice Scalia seemed to violate his rule against citing foreign law. Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”