Today was the final day for arguments during OT08 and the Court heard arguments in Northwest Austin Municipal Utility District No. 1 v. Holder. You can find the transcript here.
The arguments made were certainly very interesting. Justice Scalia, while criticizing the near-unanimity with which Congress passed the VRA extension, made this observation:
You know, 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.
I wasn’t aware of an such law, but the concept seems silly. The fact that something is so clear as to illicit a unanimous judgement doesn’t seem to in any way suggest a particular path for its reasoning. Justice Scalia’s hypothesis that Congress has a bias in favor of maintaining the status quo with regards to the VRA might be correct, but I just don’t see it playing into the equation here. Both sides are trying to argue the VRA on its merits and I’m not sure political bias of congress has a major role to play in this case as a balancing factor.
Justice Kennedy brought up some soverignty issues that I didn’t expect to see during oral arguments:
[Y]et the Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama, is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments than the other. And does the United States take that position today?
The sovereignty issue seems a bit odd to me. When the VRA was passed in 1965, Congress used a test to determine which localities met certain conditions and if so, the pre-emption clause was applied to them and they were forced to comply with Section 5. Petitioners argue that the conditions that were at play in 1965 no longer apply and that if the same test was used today, only parts of Hawaii would fall under Section 5, but I the argument that the test was used to unfairly infringe upon the sovereignty of some states while leaving others alone seems bizarre.
Anyways, the arguments are definitely worth a listen if you have a few moments to spare.