Why did justices ask irrelevant questions at oral argument?

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

Perhaps I simply have a cold, meticulous view of the law, but I couldn't help but notice the extraordinary number of times that the justices on the Supreme Court asked what appeared (at least, to me) to be fairly inflammatory, loaded, or political questions during the oral argument in Shelby County v. Holder. I'll select a few from the transcript.

JUSTICE SOTOMAYOR: In -- in the period we're talking about, it has many more discriminating -- 240 discriminatory voting laws that were blocked by Section 5 objections.
There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.
...

[W]hy would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?

Tr. at 3-4.

A little background. Shelby County is bringing what is known as a "facial challenge" to the statute. At a basic level, this means that the statute is unconstitutional against all parties; that is, there's not a single proper situation in which the statute could be upheld.

Suppose a voter challenged a voter identification law. The Court examines the law and concludes that, as a general matter, the law does not unconstitutionally burden the ability to vote. It might as a specific matter burden a particular voter, perhaps a voter whose birth certificate was destroyed long ago and lacks the proper documentation. But as a general matter, the law is not constitutional.

There are many instances where it has struck down laws on a facial challenge, especially in the First Amendment context (which often have special rules that allow for more frequent challenges). But the Court has called facial challenges "disfavored."

Which brings us to the question Justice Sotomayor asks. She essentially asks, "You're a particularly bad actor; why would we favor your challenge?" This is utterly irrelevant. The most nefarious child pornographer can bring a First Amendment facial challenge to an obscenity statute; if the statute is facially invalid, the identity of the litigant before the court is irrelevant.

In the same way, it might be that Shelby County, Alabama, has had a history of discrimination. But Justice Sotomayor also makes multiple mistakes of the factual record, presumably derived from this NAACP brief. First, there were 46 successful Section 5 challenges and 192 successful Section 2 challenges--not 240 under Section 5 and "numerous remedied" by Section 2. Second, the challenges were in the entire state of Alabama, not only in Shelby County.

Granted, even if two factual assertions are corrected, Shelby County may still lose its argument--one may conclude that 46 successful Section 5 challenges are still a good indicator; one may conclude that a high number of successful Section 2 challenges means that preclearance fits this jurisdiction; one may conclude that Shelby County, as a part of Alabama, is still subject to the coverage formula that includes the whole state. But, the misstatement of fact--which erred on the side of criticism against Shelby County--paints a misleading picture. And, it's particularly misleading in the context of a facial challenge, because if the facial challenge fails, it should fail regardless of the litigant.

It may well be that a facial challenge is inappropriate, and that the Court agrees. But, the identity of the party is not a relevant inquiry in considering a facial challenge.

JUSTICE KAGAN: And in 1986 -- or excuse me, 2006 -- Congress went back to the problem, developed a very substantial record, a 15,000-page legislative record, talked about what problems had been solved, talked about what problems had yet to be solved, and decided that, although the problem had changed, the problem was still evident enough that the act should continue.
It's hard to see how Congress could have developed a better and more thorough legislative record than it did, Mr. Rein.

Tr. at 15-16.

My first reaction was to think of Sean Connery's obscenity in The Rock (particularly as counsel's response was "I'm not questioning whether Congress did its best"). My second reaction was to think of Johnny Carson's "How Hot Was It?" routine.

Would Congress be in better shape if it had a 20,000 page record? Would it be in worse shape if it had a 10,000 page record? Is 15,000 long? Compared to what? The Patient Protection and Affordable Care Act? The No Child Left Behind Act?

Truth be told, these are impossible and meaningless metrics. It's more meaningless when one considers that just about anything can be introduced as a part of the "record," as tangential as its relevance to the underlying legislation may be. And it's even more meaningless when one considers that the primary dispute (at least, the articulated primary dispute) is over the coverage formula under Section 4, not to the totality of the Voting Rights Act ("VRA"). How many of those 15,000 pages were dedicated to the coverage formula? I have no idea.

If we've learned anything from the "federalism revolution" of the Rehnquist Court, it's that an extensive legislative history cannot cure all ills, even if some justices have been impressed voluminous records. Instead, the question is whether the legislative record supports Congress's exercise of its authority; the size of that record is not relevant.

JUSTICE ALITO: Suppose that Congress in 1965 had based the coverage formula on voting statistics from 1919, 46 years earlier. Do you think Katzenbach would have come out the same way?

Tr. at 34.

The first problem with Justice Alito's question is that he conflates the extension of the coverage formula with the initial coverage formula. Counsel noted this in responding to the question, but I want to emphasize this point. In 1965, Congress developed a coverage formula based on the 1964 elections, in subsequent renewals and extensions, it moved the date of the coverage formula as late as 1972. The 2006 renewal is in question here, and it's that renewal that used a formula with a benchmark from 34 years earlier. So asking whether Congress's initial formula could have been based on 46-years-old results is something different than asking whether Congress could extend a formula originally developed (on a better record) years earlier.

Additionally, I don't know what 46 years means. Strictly speaking, Shelby County was filed in 2010, and 46 years earlier would have been 1964. But if we're discussing Congress's enactment, it took place in 2006, 42 years after the earliest date in the coverage formula and 34 years after the latest date in the coverage formula; and the formula extends through 2031. Forty-six years sounds like a long time, but without context as to which gap in time is being challenged, it's hard to determine why that length of time matters.

CHIEF JUSTICE ROBERTS: General, is it -- is it the government's submission that the citizens in the South are more racist than citizens in the North?

Tr. at 41-42.

In a top-notch "gotcha" question, the Solicitor General, of course, denied this allegation. But there are other studies that suggest certain regions, especially covered jurisdictions in the South, are more racist.

But, the prior question should be, so what? That is, what's the relevance of this inquiry, whether true or false? The VRA was designed to help minority voters get access to polling place; and Section 5 in particular was designed to ensure that state-created barriers to minority voting would be minimized, if not eliminated.

So, the racism of the citizens of a state is, at best, an imperfect factor, at best marginally relevant and at worst utterly irrelevant, as to whether minorities are able to vote. What matters for purposes of Section 5 is whether the state is using mechanisms to prevent minorities from voting; and while the racism of the citizens might be indicative of what the state is doing as a whole at the voting place, the objective metrics used in the coverage formula (i.e., voter turnout and registration) are, perhaps, more relevant. And, the goal of Section 5 is not to cure racism (as noble a goal as it may be); instead, it is to avoid racial disparities in voting access.

One more. (I'm not sure I can handle much more, and I'm impressed if you've hung on this long.)

JUSTICE SCALIA: Indeed, 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 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.
JUSTICE 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.

Tr. at 16-17.

This tête-à-tête between Justices Scalia and Kagan is among the most bizarre exchanges (not the least of which is the unusual fact that Justice Kagan directly addressed Justice Scalia during argument). Justice Scalia goes on later in the argument to opine on the nature of this vote in a different context, but this exchange will serve as instructive.

Does the margin of the vote matter? Perhaps I'm simply a stodgy formalist, but I can't see how it matters in any meaningful legal context. Once Congress enacts a law through bicameralism, the margin of a single vote for a unanimous vote is irrelevant (in my view). The law is the law; the justification for the law turns not on the margin of the vote.

Justice Scalia opens on a rhetorical basis in a kind of reductio--that is, he tries to point to the absurdity that it's more obvious that there has been increasing evidence of problems facing minority voters by suggesting that the higher margins of the vote at each renewal were related to more evidence of problems.

This argument is essentially a rhetorical game (and, in my view, irrelevant). The fact that more legislators supported or opposed a piece of legislation has little (in my view, nothing) to do with whether Congress had the power to enact that law.

Justice Kagan takes the bait and responds with a rhetorical counterpoint. She suggested that not only the unanimous vote supported Congress's exercise of authority, but also that individual senators from the South in covered jurisdictions supported that exercise.

Justice Scalia then retorts that perhaps it was external political pressure that drove senators to support the bill (a suggestion he raises later more vociferously).

But, what does this have to do with Congress's authority under Section 5 of the Fourteenth Amendment? At the margins, one could claim that a strong margin in the Senate means there were adequate factual findings to support an exercise of power; or that political pressure, not factual findings, drove senators to support the bill.

But if the Court is going to review whether Congress had the power to engage in this exercise of authority--including whether there were adequate factual grounds--the margin of the vote or the possible subjective reasons senators had are irrelevant.

That's just a few of the problems I saw in the transcript. Why, then, did the justices ask these questions? That's for another post.