WASHINGTON -- Conservative justices on the Supreme Court expressed skepticism Wednesday about whether the federal government should still be requiring preclearance of voting system changes in certain places with a history of racial discrimination in elections.
Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the "perpetuation of racial entitlement," saying that lawmakers had only voted to renew the act in 2006 because there wasn't anything to be gained politically from voting against it.
"Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," Scalia said during oral argument in Shelby County v. Holder.
"Even the name of it is wonderful, the Voting Rights Act. Who's going to vote against that?" Scalia wondered. He said that the Voting Rights Act had effectively created "black districts by law."
But liberal justices argued forcefully that Section 5's preclearance requirement was still necessary and had proved to be an effective way for the Justice Department and the courts to stop discrimination at the polling place. Justice Elena Kagan said the formula "seems to be working pretty well."
Justice Sonya Sotomayor said that Shelby County, Ala., probably wasn't the right part of the country to be challenging a key provision of the Voting Rights Act.
"Some parts of the South have changed. Your county pretty much hasn't," said Sotomayor. "You may be the wrong party bringing this."
"Under any formula that Congress could devise, it would still capture Alabama," added Kagan.
Justice Anthony Kennedy, often the swing vote between the Supreme Court's liberal and conservative blocs, didn't offer progressives much hope that he would find Section 5 constitutional, saying that while the provision was necessary in 1965, this was 2013.
"The Marshall Plan was very good, too -- the Northwest Ordinance, the Morrill Act -- but times change," Kennedy said.
If Congress wants to "single out" states, he said, the legislators should "do it by name." He repeatedly described Congress as having "reverse engineered" the formula originally used in the Voting Rights Act to ensure that certain states would be covered by Section 5. Lawmakers didn't take the "time and energy" to come up with a proper formula for which states should be subject to preclearance, said Kennedy.
Chief Justice John Roberts sharply questioned Solicitor General Donald Verrilli, asking him whether it was the position of the U.S. government that residents of Southern states -- most of the jurisdictions covered by Section 5 are in the South -- are more racist than those of Northern states.
Verrilli said that was not the U.S. position in the case. He also pointed out that the Justice Department has only objected to a "tiny fraction" of the proposed electoral changes submitted under the preclearance process.
Cases under the Voting Rights Act's Section 2, which can be brought against any jurisdiction in the country, are much more expensive, Verrilli said, and often demand after-the-fact litigation rather than preventing questionable voting changes before they go into effect.
Congress wasn't working from a "blank slate" when it reauthorized the act in 2006, the solicitor general said. He argued that Congress was well within its rights to renew Section 5 for another 25 years and had extensively studied the issue before voting overwhelmingly to do so.
Kagan asked a lawyer for Shelby County who should be able to decide when the discrimination problems that the Voting Rights Act was meant to address had ended.
"Who gets to have that call? Is it you? Is it the court? Is it Congress?" she asked. When the lawyer replied that the Supreme Court should answer that question, Kagan said she hadn't realized the court was being given a "big new power to decide whether racial discrimination has been solved."
After the oral argument, Pete Williams of NBC News observed, "I think it's safe to say there are five votes to strike down either one or both parts of the Voting Rights Act."