Indeed, Scalia points to the 98-0 Senate vote on the Voting Rights Act extension, especially Section 5 "reauthorization", as a sign of campaign "politics" and as a reason to view that reauthorization as unconstitutional, allegedly not being based on "real" legislative considerations. That is in fact the limited question before the Court on certiorari:
"WHETHER CONGRESS' DECISION IN 2006 TO REAUTHORIZE SECTION 5 OF THE VOTING RIGHTS ACT UNDER THE PRE-EXISTING COVERAGE FORMULA OF SECTION 4(b) OF THE VOTING RIGHTS ACT EXCEEDED ITS AUTHORITY UNDER THE FOURTEENTH AND FIFTEENTH AMENDMENTS AND THUS VIOLATED THE TENTH AMENDMENT AND ARTICLE IV OF THE UNITED STATES CONSTITUTION.Can one conclude by analogy that Scalia's own confirmation to the nation's highest Court should be similarly (re)viewed, as a politically (mis)guided 98-0 free ticket to the bench while the Senate was involved in the confirmation battle over the Reagan nomination of arch right-wing Associate Justice William Rehnquist as Chief Justice, as some commentators have alleged?
CERT. GRANTED 11/9/2012"
One can be sure that many citizens and Senators would like to see Justice Scalia's confirmation to the Court "(re)viewed" in the Senate, given present realities and Scalia's controversial judicial performance, just as the Voting Rights Act is being (re)viewed by the Court via judicial hindsight and in a new political atmosphere. Indeed, were Supreme Court confirmations reviewed presently, it is likely that Justice Scalia would not be confirmed today.
We recognize Justice Scalia's intellect, but find that he is a man who could have been a great judge but has turned into a mediocre one because of his predilection to take judicial stances by virtue of his own petty theoretical preferences, rather than via an intellectually honest application of the precedents of "the law".
One of Scalia's inconsistent arguments is found in the oral argument to Shelby County v. Holder -- where he loudly expresses his view that the 98-0 Senate vote on reauthorizing Section 5 of the Voting Rights Act occurred for "political" reasons and not because there was a legitimate legislative reason for its reauthorization.
"Original" tone Scalia:
"[T]hey are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"We have been poring through treatises of hornbook law to find substantiation of Scalia's "political test" of the Constitutionality of Congressional legislation, but have found nothing in support.
Indeed, it was our understanding that ALL laws passed by Congress were "political" in nature and that the unavoidable political motives for laws had nothing to do with a law's Constitutionality per se.
But then perhaps "originalist" doctrine has something original about that?
As written at the Wikipedia under the topic of the Voting Rights Act, there was in fact Congressional debate on controversial issues raised by extending the Act, so that reauthorization was not simply a rubber stamp of previous legislation:
"During the debate over the 2006 extension, some Republican members of Congress objected to renewing the preclearance requirement (the Act's primary enforcement provision), arguing that it represents an overreach of federal power and places unwarranted bureaucratic demands on Southern states that have long since abandoned the discriminatory practices the Act was meant to eradicate. Conservative legislators also opposed requiring states with large Spanish-speaking populations to provide bilingual ballots. Congress nonetheless voted to extend the Act for twenty-five years with its original enforcement provisions left intact."If Justice Scalia and his like-minded cronies on the Supreme Court now feel like they are the "better legislators" than Congress, then we suggest that they resign from their Supreme Court positions and run for Congressional "political" seats on the House of Representatives or Senate, where their legislative wisdom will be better appreciated.
Barring that move to political fields, it would be refreshing to see the Supreme Court Justices stick to their expertise, which is THE LAW and its precedents, none of which prohibit Congress from passing this kind of legislation, even if it sticks in the political craws of selected Justices.
Could the Voting Rights Act be better drafted?
including more sensible enforcement provisions?
We are no apologists for what we often view as a reformable Congress.
But to find the Voting Rights Act extension unconstitutional,
as a matter of law?
It should never happen, notwithstanding the judicial activists on the Court, i.e.
... the "terrible trio of three" (Alito, Thomas & Scalia),
who are bound to opine to us in some kind of nostalgic political dictum about States' rights and some other sentimental retro jurisprudence.
Based on their questions during oral argument, Justices Ginsburg, Sotomayor, Kagan and Breyer will arguably vote in favor of the Voting Rights Act extension, though Justice Breyer can be a puzzle at times. He did note as follows in what to us is a correct summation of the essential legal question in the case, which can only be answered in the affirmative, if politics is kept out of the issue:
"And to go back to Justice Sotomayor's question, as long as it's rational in at least some instances directly to pick out those States, at least one or two of them, then doesn't the statute survive a facial challenge? That's the question."Some might think that Justice Kennedy may play a leading role here, but we lost faith in his long-term wisdom because of his negative vote on Obamacare and it will take time for him to get back any standing in our eyes as a result. In oral argument, he appeared to be enamored of his own Section 2 arguments, finding Section 2 actions as alternatives to Section 5. Great in theory, weak in practice. This is perhaps why Kennedy is a judge and not a legislator.
We predict that the Voting Rights Act case may turn on the vote of Chief Justice Roberts, who is, from the standpoint of his superb if conservative legal understanding, against the Supreme Court usurping the Constitutional duties of Congress. Finding the Voting Rights Act extension to be unconstitutional would be the Justices playing Congressman and Roberts will not put up with that.
It could be nip and tuck and we think, again, that Roberts, as in Obamacare, may cast the ultimate "conservative" vote, which maintains the separation of powers between the legislature and the judiciary, and thus does NOT overturn the Voting Rights Act extension, flawed as that Act may be in terms of some of its details, none of which, however, can rightly be categorized as Congressional overstepping of the powers of Congress.
It is legislation in need of reform, but it is not unconstitutional.