Thursday, February 28, 2013

And now we wait...

The news coming out of SCOTUS on Wednesday as the oral proceedings in Shelby v Holder were concluding were nothing short of dire. Phrases like "Section 5 of the Voting Rights Act appears doomed," were common, and word of Justice Scalia calling the Act a racial entitlement spread like wildfire across the media.

But as is so often the case, what really took place bears little resemblance to the hype from those first reactions. It was both more interesting, and more enlightening to actually take the time to read the 84 page argument found here:

I had honestly forgotten how much I love reading cases. I think law school kind of killed the experience for me for awhile. And this one is a truly compelling read.

Almost from the beginning, shortly after Attorney Bert Rein for Shelby County made his introductions, and began his argument, Justices Sotomayor, Ginsburg and Kagan were right there questioning him about his very presence in the Court, which of course, is at the very crux of the case. I think what I didn't realize was the extent to which the Justices would speak of the fluidity of Section 5, as it has the ability to expand elsewhere, as well as to contract, which was Shelby's goal here. I will be curious to see how the Justices address that in their opinion.

Reading and re-reading Scalia's comments regarding Section 5 as a perpetuation of a racial entitlement was and still is, to me, horrifying. I'm not sure I can elaborate on my feelings about his comments and views in any objective way yet. I am hoping his opinion clarifies his comments and that somehow, they aren't as obtuse as they seem to me now...

The Justices are scheduled to meet tomorrow, on Friday, which is a bit of a surprise. They have until June to render a decision, but it may be that extensive deliberation is not necessary at this point. It is truly difficult to imagine a scenario in which Shelby County would not be covered by Section 5, and Rein did not strongly demonstrate why it should not be.

I am glad I finally had the time to read the proceedings to see that from the transcript and my interpretation of it, this is not the end of this important, and yes still very much needed statute. But it is a split Court, and like Healthcare, I think we know now not to speculate too much where the opinion will fall.

Stay tuned...

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