Justice Stephen Breyer: "This isn't a question of rewriting the statute. This is a question of renewing a statute that by and large has worked. if you have a statute that sunsets, you might say: 'I don't want it to sunset if it's worked, as long as the problem is still there to some degree.' That's the question of rationality. Isn't that what happened?"
Shelby County, Ala., lawyer Bert W. Rein: "If you base it on the findings of 1965. ... We had a huge problem at the first passage of the Voting Rights Act, and the court was tolerant of Congress' decision that it had not yet been cured. There were vestiges of discrimination. So when I look at those statistics today and look at what Alabama has in terms of black registration and turnout, there's no resemblance."
Justice Antonin Scalia, on extension of the Voting Rights Act: "Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these states were violating the Constitution. Do you think that's true?"
Justice Elena Kagan: "Well, that sounds like a good argument to me, Justice Scalia. It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation."
Scalia: "Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no — none of their interests in voting against it."
Breyer: "I don't know what they're thinking exactly, but it seems to me one might reasonably think this: It's an old disease, it's gotten a lot better, a lot better, but it's still there. So if you had a remedy that really helped it work, but it wasn't totally over, wouldn't you keep that remedy?"
Solicitor General Donald B. Verrilli Jr.: "Everyone agrees that the significant progress that we've made is principally because of Section 5 of the Voting Rights Act. And it has always been true that only a tiny fraction of submissions result in objections."
Scalia: "You could always say, Oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them. So, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity."
Justice Samuel Alito: "There is no question that the Voting Rights Act has done enormous good. It's one of the most successful statutes that Congress passed in the 20th century, and one could probably go farther than that. But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage? Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics."
Justice Anthony Kennedy "If Congress is going to single out separate states by name, it should do it by name. If not, it should use criteria that are relevant ... and Congress just didn't have the time or the energy to do this; it just re-enacted it."
Verrilli: "I think the formula was rational and effective in 1965. The court upheld it then, it upheld it three more times after that."
Kennedy: "Well, the Marshall Plan was very good, too, the Morrill Act, the Northwest Ordinance, but times change."
Verrilli: "But the question is whether times had changed enough and whether the differential between the covered jurisdictions and the rest of the country had changed enough that Congress could confidently make the judgment that this was no longer needed."
Chief Justice John Roberts: "Is it the government's submission that the citizens in the South are more racist than citizens in the North?"
Verrilli: "It is not, and I do not know the answer to that, your honor."
Roberts: "Well, once you said it is not, and you don't know the answer to it."
Verrilli: "It's not our submission. As an objective matter, I don't know the answer to that question. But what I do know is that Congress had before it evidence that there was a continuing need based on Section 5 objections, based on the purpose-based character of those objections, based on the disparate Section 2 rate, based on the persistence of polarized voting, and based on a gigantic wealth of jurisdiction-specific and anecdotal evidence, that there was a continuing need."
Scalia: "This last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any senator to vote against continuation of this act. And I am fairly confident it will be re-enacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different states differently, that there's a good reason for it. That's the concern that those of us who have some questions about this statute have. It's a concern that this is not the kind of a question you can leave to Congress."
Verrilli: "I do think that the deference that Congress is owed ... that deference is appropriate because of the nature of the power that has been conferred here and because, frankly, of the superior institutional competence of Congress to make these kinds of judgments. These are judgments that assess social conditions. These are predictive judgments about human behavior and they're predictive judgments about social conditions and human behavior about something that the people in Congress know the most about, which is voting and the political process. And I would also say I understand your point about entrenchment, Justice Scalia, but certainly with respect to the Senate, you just can't say that it's in everybody's interests — that the enforcement of Section 5 is going to make it easier for some of those senators to win and it's going to make it harder for some of those senators to win. And yet they voted unanimously in favor of the statute."
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