The Voting Rights Act oral argument is a good reason we don't televise

This is the first in a series about the oral argument in Shelby County v. Holder.

Whether oral arguments at the Supreme Court should be televised is an evergreen debate. Really, it's less of a debate, and more journalistic (and, occasionally, academic) hand-wringing, as writers and bloggers lament that they lack an aural representation of oral argument.

It is, at best, debatable to think that oral argument before the Supreme Court regularly changes any one justice's mind--and it's a particularly challenging assertion to make given the volume of cases heard at the lower courts without oral argument (admittedly, in part because the courts of appeals do not select their own cases), and the fact that few tend to view the skill of writing appellate briefs and the skill of oral advocacy as, perhaps, skills that go together rather than either-or. (Indeed, among academics, one might see a parallel argument in the claim that the best professors in the classroom are the best authors of scholarship.)

And in many respects, the most influential effect of oral argument may be its negative power. After the Supreme Court has granted certiorari, it may hear a case and conclude that certiorari never should have been granted at all. The Court then dismisses the case as improvidently granted (or "DIG"). Time after time, the Court has dismissed after oral argument revealed a flaw in the case.

But, perhaps one disputes the conclusion that oral argument is often unimportant; or, even if is unimportant, it is still an integral part of our public legal process and ought to be accessible to the public.

Of course, it is accessible. One can wait in line to view the proceedings live. Or, one can read the transcripts that are usually released on the day of argument. Or, one can listen to the audio of the argument, usually released the week of argument.

That, to some, is not enough. Absent video of the oral argument (and, one supposes, for some only live oral argument will suffice), the Court will continue to commit a great offense against transparency, justice, etc.

There was great anguish as Justice Sonia Sotomayor, one previously seen as amenable to the prospect of cameras in the courtroom, expressed skepticism that cameras would be useful and noted that they may be "more misleading than helpful." And so the cries continue, from former solicitors general to members of Congress to one commentator comparing it to an "intellectual poll tax."

Which brings us to our case study.

On February 27, 2013, the Court heard oral argument in Shelby County v. Holder, which, greatly simplified, asks whether Congress had the authority to require certain states (mostly in the South) and localities to "preclear" any changes in election laws. Designed to cure chronic voting barriers facing African-Americans, the Voting Rights Act of 1965 ("VRA") proved enormously effective, including Section 5, the preclearance provision. States covered under Section 5 were determined by a formula in Section 4(b), which covered states that had low voter registration or turnout. The provisions had sunset provisions, but they have been renewed repeatedly.

In 2006, Congress reauthorized the preclearance provisions through 2031 in the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006. (In 2008, Congress changed this name to the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, Cesar E. Chavez, Barbara Jordan, William Velazquez and Dr. Hector Garcia Voting Rights Act Reauthorization and Amendments Act of 2006.)

The problem: Section 4(b) still used a coverage formula based upon state registration and turnout levels in 1972. Some, including Shelby County, Alabama, argue this exceeded Congress's authority.

It's a fairly significant case, particularly because the Court hinted in 2009 that there were problems with Congress's reauthorization. And as the VRA is sometimes called the "crown jewel" of civil rights legislation, given its effectiveness. (In 1966, for instance, black voter turnout lagged white voter turnout by 15 points; in 2012, black voter turnout may well have exceeded white voter turnout.)

So what happened during oral argument? I note two problems. First, oral argument prompted a number of non-sequiturs from the justices, which at least debatably are points raised to score political or popular points rather than to assist them decide the case; and, second, oral argument prompted a number of rather aggressive interpretations of the dialogue that, in my view, are generally unfair to the justices' articulated positions. I'll follow up with these in subsequent posts.