Predictions based on oral argument are a risky business, but after this morning it is fairly safe to say that the outcome of Shelby County will hinge on how the Justices answer the question Justice Elena Kagan asked toward the end of argument: who gets to decide when the problem of racial discrimination in voting is solved? Because I think most Americans would recognize the reality that voting discrimination is still a problem, I would rephrase slightly: who gets to decide how best to go about solving the problem of voting discrimination?  As Solicitor General Don Verrilli repeatedly emphasized this morning, the Constitution expressly grants Congress the power to enforce the constitutional guarantee of the right to vote free from racial discrimination.  Not the courts.  Not Shelby County, Alabama, of all places.  Not even Justice Kennedy.

Speaking of Justice Anthony Kennedy, he again expressed his concern, which we heard a few years ago during the Northwest Austin Municipal District Number One v. Holder oral argument, that the Voting Rights Act’s preclearance provision treats states differently and infringes on state sovereignty and the “equal footing doctrine.”  In response, Justice Ruth Bader Ginsburg took a moment of Shelby County’s counsel’s time to point out that the Court had previously rejected the “equality of states” argument in upholding the VRA.  Verrilli also answered Kennedy’s concern later in the argument today by invoking the framers of the Fifteenth Amendment, who conferred enforcement power on Congress while recognizing that states would be treated differently in order to protect the voting rights of all Americans, regardless of race or color – because there were real reasons to treat states differently.  Justice Stephen Breyer brought it home by stating the obvious: “What do you think the Civil War was all about?!”

Despite the Constitution’s express grant of authority to Congress to determine what legislation is “appropriate” to protect the Fifteenth Amendment’s guarantee of the right to vote free from racial discrimination, there was a lot of second-guessing of Congress from some of the Justices this morning.  Chief Justice John Roberts repeatedly pressed the VRA’s defenders about why all of the states aren’t subject to preclearance, given that voter suppression occurs in non-covered states as well as covered states.  Justice Kennedy wondered if lawsuits filed under Section 2 of the VRA and the statute’s “bail-in” procedure could do the job of protecting voters’ rights just fine without preclearance.  Justice Antonin Scalia, in a rather remarkable speech that drew gasps from the audience, second-guessed Congress’s motives for reauthorizing the Voting Rights Act in 2006, suggesting that it was “perpetuation of a racial entitlement.”

Fortunately, Justice Sonia Sotomayor took on Scalia’s rather astonishing claim, pointing out that the right to vote is not a “racial entitlement.”  I agree.  It’s an American entitlement.  The ideal of equality in our democracy has been our touchstone from the Declaration of Independence, to the Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments, and through the enactment and reauthorization of the Voting Rights Act, which made equality in voting a reality for many previously disenfranchised Americans.  As Justice Ruth Bader Ginsburg noted in the beginning of this morning’s argument, enormous progress has been made in the South and throughout our country.  But Congress was right to recognize by reauthorizing the VRA that we still have much further to go in our march of progress.  I hope the Court will ultimately uphold this iconic and still vital statute.