I could end there, because that’s when the 5 to 4 count seemed inevitable. But I have to tell you about how Justice Antonin Scalia understands the vote of 98-0 in the Senate to reauthorize the Voting Rights Act the last time around. This is proof not of the strength of the case for the law, but of what Scalia called “the perpetuation of racial entitlement.” Once you have such an “entitlement,” he said, “it’s very difficult to get out of them. There’s nothing to be gained by voting against it, and I am fairly confident it will be re-enacted in perpetuity unless the court can show that it’s unconstitutional.” In other words, “that you are treating states differently” for no good reason.
So this is how five conservative justices justify overriding the judgment of Congress about how to protect the rights of minority voters, past, present and future. Sotomayor and Kagan tried to hit back. “Why should we make the judgment, and not Congress, about the types and forms of discrimination and how to remedy them?” Sotomayor asked.
This was during Rein’s rebuttal, and he must have counted to five and gotten overconfident, because he said that the problem the Voting Rights Act was meant to address had been solved. “The radical treatment cured the disease,” he said.
Kagan nailed him. “You said the problem has been solved,” she said. “But who gets to make that judgment — you, the court or Congress?”
Oh, not me, Rein deferred. You.
“That’s a big new power you’re giving us!” Kagan exclaimed.
Five of her colleagues seem more than ready to take it.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids.