06/09/2013 06:09 pm ET Updated Aug 09, 2013

Scalia Signals He Will Decide Voting Rights Case Under German Jurisprudence

Justice Scalia's comments during the oral argument on the challenge to Section 5 (Shelby v Holder) of the Voting Rights Act signaled that he would decide the case under German, not American, jurisprudence.

Under the U.S. Constitution and precedent, constitutional issues presented to the Court fall into several boxes, for example: whether state laws comport with the Constitution; whether an individual, or individuals, have been deprived of their rights under the U.S. Constitution; or, whether an Act of Congress is within the limits of the powers granted to it in the Constitution.

Under Marbury v Madison, the Supreme Court determines whether a law of Congress violates the Constitution. But, it does not determine facts. In cases involving an act of Congress, such as the Voting Rights Act, the Court pays great deference to findings of facts by Congress. Congress is, after all, the peoples' elected representatives; and, it can be changed. The Court, moreover, has no fact-finding mechanism of its own. Opposing parties can present alternative facts, but the Supreme Court accepts Congress's rationale for a law unless it is clearly and obviously erroneous.

This is the process the Chief Justice employed to determine that the Patient Protection and Affordable Health Care Act (aka ObamaCare) was constitutional. The question was not whether our medical system required changes, or even whether the enacted changes were good, but rather whether the changes were within Congress' powers. Although the case was not nearly as difficult as he made it, the Chief Justice looked for provisions of the constitution he could use to uphold the law, not for excuses to invalidate it, because it was an act of Congress and thus, as a product of the elected branch, due great deference.

The Chief Justice was not disputing Congress' facts, he was applying constitutional principle.

By complete contrast, Justice Scalia signaled a different approach to the Voting Rights Act. Rather than treat the findings and conclusions of Congress -- after 10 months of hearings, and nearly 12,000 pages of testimony that showed pervasive discrimination in covered districts -- with deference unless clearly and obviously erroneous, Scalia dismissed Congress as being totally irrelevant.

Justice Kagan then made the role of the Court in adjudicating an act of Congress very clear when she asked the Shelby County (plaintiffs) counsel who should decide if there were discrimination. Counsel suggested that that power belongs to the Court, to which Justice Kagan exclaimed that that was an enormous grant of power that the Court never before had. So, if it is not the Court, it can only be Congress.

The German constitution provides its Supreme Court (Bundesverfassungsgericht) much broader powers than its U.S. counterpart, including fact-finding and analysis by conducting hearings, convening boards of experts, and looking almost anywhere it wishes to inform itself about a case. Between 1951 and 2009 the German court has struck down more than 600 laws passed by the Parliament.

In the oral argument on the Voting Rights Act, the Chief Justice treaded on German jurisprudence himself when he asked about African-American voter registration in Mississippi compared to Massachusetts.

His claims about percentage registered have come under attack for accuracy, but there is a more important point: suppose he were correct, so what? There was no suggestion, even in the Chief Justice's harangue, that Africa-American voters in Massachusetts faced discriminatory voting law practices. And, if they did, would that mean that preventing racial discrimination in some places was invalid because it was not prevented everywhere?

There is even a larger point: unlike the German constitutional court, the Chief Justice has no independent means at his disposal to investigate that question. Massachusetts officials pretty much demolished the Chief Justice's assertion, demonstrating the danger of making assertions that do not arise from hearings or adversarial discussions.

Although Roberts' question displayed the limitations and dangers of incompetent and irrelevant fact-gathering, Justice Scalia's ability to psychoanalyze the entire Congress and determine their inability to vote against anything with a name like, say, Voting Rights Act, is stunningly corrupt.

It makes former Senate Majority Leader (and eminent cardiac surgeon) Bill Frist's (R-TN) declaration that Terry Schiavo had viable brain function based upon viewing a few-minute video on the Senate floor seem almost credible.

The strength of Justice Scalia's argument, upon which he signaled his decision would be based, is that the impossibility of elected officials to discontinue what Scalia calls racial entitlements "has been written about."

Scalia did not even attempt to argue that such assertions have been analyzed and proven (which itself would have been practicing German, not American jurisprudence) but merely that it has been "written about."

Although it is tempting to let it go at that, it is perhaps worth noting it is hardly difficult for majorities to vote to undo minority rights, whereas it is exceedingly difficult for minorities to get such rights in the first place. The Senate voted unanimously to re-authorize the Act. The House voted 390-33. Does Justice Scalia seriously assert that there are not scores of House districts, and many states, that would have no problem reversing minority rights? Just what did Scalia think was going on during the 2012 elections? Or, today, in North Carolina?

Justice Sotomayor pointed out Shelby County, the plaintiff bringing the lawsuit, has had more than 240 discriminatory laws blocked the Section 5.

The late-Senator Roman Hruska (R-NE) said that it was time (in the 1970s) for mediocre people to have their representation on the Supreme Court too. It appears as Justice Scalia has posthumously granted him his wish.

Nelson Mandela writes in his autobiography (Long Walk to Freedom) of a case in which the judges in apartheid South Africa determined a man's racial category, and thus chances for a decent life, by the slope of his shoulders. And, in 21st century America, millions of people are on the path to disenfranchisement on the basis of something that "has been written about." Shoulder sloping had likely been "written about" too.

Even Senator Hruska did not suggest that a U.S. Supreme Court Justice use rules of German jurisprudence to decide a case of monumental importance to tens of millions of Americans.