What standard of review might the Court use in Shelby County?

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

Much ink has been spilled ​over a number of what I view as minutiae over the oral argument in Shelby County v. Holder. But there's one significant question at stake, so far mostly undiscussed: what standard of review should apply?

Without getting into the weeds (and grossly oversimplifying some of the principal cases), there are three major schools of thought as to how the Supreme Court should evaluate Congress's exercise of power under the Fourteenth and Fifteenth Amendments. The first is essentially rational basis, or a deferential "necessary and proper" view, first articulated in McCulloch v. Maryland​ in 1819: "If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect."

The second is a more exacting review, "congruence and proportionality."​ In City of Boerne v. Flores​ in 1997, the Court concluded that the Fourteenth Amendment was "remedial, rather than substantive," which limited the scope of ills that Congress could address: "The appropriateness of remedial measures must be considered in light of the evil presented."

The Court identified these two standards in Northwest Austin. And the third is perhaps idiosyncratic. Justice Scalia in Tennessee v. Lane rejected his previous use of the "congruence and proportionality" standard. His test would find that Congress may "enforce" the tenets of the Fourteenth Amendment but not enact prophylactic legislation.

Complicating this is that there has been a great deal of application of "congruence and proportionality" under the Fourteenth Amendment, but it's largely been resisted under the Fifteenth Amendment, particularly as the test is of relatively recent vintage.​ Apart from the dispute of which standard to apply to the Fourteenth Amendment, then, is what to apply to the Fifteenth Amendment.

We can perhaps glean some hints as to what test the Court will apply by the questions asked. Admittedly, even if a justice asks about a particular test, she may not intend to use that test; but, I would suspect (and this is admittedly a hunch) justices are more inclined to ask about the standards they intend to write about.

Chief Justice Roberts and Justices Kennedy and Alito all cited "congruence and proportionality" as the standard.

CHIEF JUSTICE ROBERTS: Is the formula congruent and proportional today, or do you have this reverse engineering argument?

...​

To -- to the problem or -- or was the formula congruent and proportional to the remedy?

​Tr. at 45.

CHIEF JUSTICE ROBERTS: Well, we also said congruent and proportional.

Tr. ​at 56.

JUSTICE KENNEDY: Is that a methodology that in your view is appropriate under the test of congruence and -- and proportionality?

Tr. at 19.​

JUSTICE ALITO: 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? . . .

But why -- why wasn't that required by the congruence and proportionality standards?

Tr. at 33-34.​

Justice Sotomayor suggested the standard might be irrelevant, and did ask about the Fifteenth Amendment.

JUSTICE SOTOMAYOR: And so the question becomes, why do we strike down a formula, as Justice Kagan said, which under any circumstance the record shows the remedy would be congruent, proportional, rational, whatever standard of review we apply, its application to Alabama would happen.

​Tr. at 6.

JUSTICE SOTOMAYOR: Would you tell me what you think is left of the rational means test in Katzenbach and City of Rome? Do you think the City of Boerne now controls both Fourteen -- the Fourteenth and the Fifteenth Amendment and how we look at any case that arises under them?

​Tr. at 27.

Justice Breyer repeatedly emphasized rational basis review.​

JUSTICE BREYER: And so the question I guess is, is it rational to pick out at least some of those States? 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 of rationality.​

​Tr. at 12-13.

JUSTICE BREYER: Is that an irrational decision?​

Tr. at 17.​

JUSTICE BREYER: So it was rational when you continue.​

...​

I want to know what your response is as to whether we should -- if he's right -- if he's right that there is an irrationality involved if you were writing it today in treating State A, which is not too discriminatorily worse than apparently Massachusetts or something.

Tr. at 43-44.​

JUSTICE BREYER: ​ Now the question is, is it rational to do that?

Tr. at 60.​

(Note that some of these address the "equal footing doctrine," a slightly different argument about whether Congress may treat some states differently than others.)​

​I should note one important fact: oral argument may (emphasis on "may") have illuminated what standard they intend to apply. But there is essentially no attempt to ask the advocates which standard should apply, or why a particular standard is preferred (except Justice Sotomayor's question about the Fifteenth Amendment). It is as if each justice has already determined the standard and is simply asking the advocates to apply that standard given the factual context.

That's certainly a useful exercise. But it does suggest that oral argument is not serving the clarifying purpose that one might aspire for it to perform.

Statistics and the Voting Rights Act

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

Nina Totenberg at NPR had a rather provocatively-titled piece after the oral argument in Shelby County​: "In Voting Rights Arguments, Chief Justice Misconstrued Census Data." The piece goes on to explain that Mr. Roberts "was wrong" when he made the claim that Massachusetts had the worst ratio of African-American to white voter turnout, and that Mississippi had the best. The Secretary of State of Massachusetts, William Galvin, agreed that it was "disturbing" "misinformation" and "wrong."

If I may, both Ms. Totenberg and Mr. Galvin are either intentionally misrepresenting Chief Justice Roberts's (and the lower court's dissenting opinion's) data, or they are unaware of an important distinction they've elided over.

For Chief Justice Roberts (I think), the concern is the coverage formula. And the coverage formula was reauthorized in 2006. And the last available voter data was 2004. It's unsurprising, then, that the lower court's dissenting opinion, at 11-14, look at the voting data from 2004. It specifically refers to this Census data, Table 4a.

Within that table, one can see that the turnout rate (and we'll set aside the "ratio" for now, which is the point Mr. Roberts raised, but not the one that Ms. Totenberg addressed; for that, I'll return briefly below) for African-Americans in Mississippi in 2004 was 66.8%, MoE 5.2. In Massachusetts, it was 43.5%, MoE 9.6. So assuming one wants to stretch the MoE, the low end of MS would have been 61.6%, and the high end of MA would have been 53.1%. Ms. Totenberg's calculation to "factor in the margins of error at their extremes" would result in the same confidence that MA African-American turnout was worse than MS.

As to the citizen voting-age population question, one can run a quick check in the MA data to see that it would rise from 43.5% to 46.5%, while MS would remain largely the same--and I'm fairly confident that even a change in the MoE would not put MA in a statistical range in which it would be better than MS.

Now, this is important data because it is 2004 data, the data that Congress would have used (and, taking into account time and space, absent a DeLorean, could have used) when it reauthorized the coverage formula.

Ms. Totenberg and Mr. Galvin use the 2010 Census data, which is not the data that Congress would have had at its disposal in reauthorization.

Mr. Galvin "assumes" it is the 2010 data Mr. Roberts discusses, and is not terribly careful if he says the "only thing we could find" was the 2010 Census, or that "academics" at other institutions "could find no record," when the record is in the lower court dissent itself.

Ms. Totenberg, to her credit, links to the lower court dissent--but then ignores the actual 2004 Census data cited, instead choosing to cite the 2010 Census data, which was not used in the lower court dissent (and which, I assume, was not cited by Mr. Roberts).

On top of this, Rob Anderson (Pepperdine) has identified still more errors in Ms. Totenberg's analysis at a basic statistical level.​​

Now, granted, I understand that one could argue that the question is too narrow, that citing solely the returns from a single election (i.e., 2004) is not enough to sink the coverage formula, that the effectiveness and turnout rates today are important in the Court's analysis, etc. And I think Politifact has a very fair take on the relevance​ of the data Mr. Roberts cited (although I would take issue of putting too much weight in Mr. Roberts's use of the "present tense" to decide which dates he used, as opposed to putting more weight in the record developed below).

Indeed, I'm not terribly sure how relevant the fact Mr. Roberts raises is. As I've mentioned, I think Mr. Roberts is as guilty as many on the Court of using oral argument to raise irrelevant points.

But, these stories glibly rejecting a point Mr. Roberts made at oral argument by using a point he didn't make do not advance the conversation in any meaningful way. If writers and politicians are going to parse oral argument so seriously, I think it's only fair to weigh seriously what was actually​ said rather than what they wish was said, and then address the relevance​.

A version of this post originated as an email on the Election Law listserv.

Section 2 as an alternative to Section 5

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

​There are several moving parts involving the Voting Rights Act even in the limited dispute before the Court. Some states must seek preclearance under Section 5 before making any election law-related changes. But there are several different ways that states can fall under the preclearance regime. The formula at dispute in this case, Section 4(b), requires jurisdictions that failed certain voter registration or turnout benchmarks (held up against results of, most recently, the 1972 election) would be required to preclear changes.

But there are other ways states can become covered jurisdictions. One, for instance, is Section 4(f)(4), which requires jurisdictions with a certain foreign language-speaking population to be covered.​

And another is Section 2 via Section 3, which allows ​for a lawsuit to get a non-covered jurisdiction covered (a kind of "bail-in" mechanism). If the government can establish that a jurisdiction has denied voters on the basis of race, then the jurisdiction can become a covered jurisdiction.

Additionally, Section 2 does something else altogether. It allows for a lawsuit to stop a election law-related change in an non-covered jurisdiction. Because non-covered jurisdictions are not required to preclear changes, there is a mechanism for litigating potentially improper new election laws and regulations.

Good so far? Here's one problem after oral argument.​

​Section 2's lawsuit provision to contest non-covered jurisdictions does a lot of the things that Section 5 does--but obviously, it does not do everything. And after oral argument, some expressed concern that the Court was inclined to find that Section 2 was an adequate safeguard if jurisdictions otherwise covered under Section 4(b) were no longer covered.

Charlie Savage in the New York Times,​ expounded upon by Rick Hasen, addressed this point, as did others in the briefing of the case. But after the oral argument, I'm not convinced that this is exactly the Section 2 argument being made.

In particular, I'm not convinced that this Section 2 point made by Justice Kennedy is the one that's more salient in the analysis. Granted, Justice Kennedy raised the issue and noted "it's not clear to me that there's that much difference in a Section 2 suit now and preclearance," but followed with "I may be wrong about that. I don't have statistics for it. That's why we're asking." And Attorney General Donald Verrilli followed with a less-than-satisfactory answer (at least, I imagine, from Justice Kennedy's perspective), that petitioners "haven't made any effort to" demonstrate that point, and that he didn't "have any statistics for you."

I think there's a strong case to be made (and has been made by some) that Section 2 "plus" is not "as good as" Section 5, but Justice Kennedy was, I think, at least genuinely inquiring (or, I'm inclined to give him the benefit of the doubt that it was a genuine inquiry), and Mr. Verrilli did not have a strong retort (as right as he might have been that petitioners failed to present adequate evidence).

But, that aspect aside, there are repeated instances in which Justice Kennedy articulated the point that Section 2's bail-in mechanism would provide a much more credible basis for Section 5 preclearance. And this is consistent with the theme of the case--that is, the preclearance formula in Section 4(b) is improperly tailored; that it will be struck down for a lack of findings by Congress that it was necessary; but, that the bail-in mechanism of Section 2 via Section 3, which requires individualized litigation by the Government and individualized findings of fact before preclearance applies, etc., would work quite well. Justice Kennedy twice mentions Section 3 in the context of Section 2 (Tr. at 24, 54); and, in fact, he's the only one who raises Section 3 in the transcript (at least, by my search function).

So, perhaps Justice Kennedy (and a majority of the Court) will rely on Section 2 as an adequate basis to enforce the protections otherwise afforded by Section 5, but I think the Court would be more inclined to focus on the coverage formula, and, in doing so, would be more inclined to rely on Section 2 and Section 3 as an alternative basis for a coverage formula. While it may also acknowledge that Section 2 "plus" provides remedies, shall we say, "comparable to" (if not "as good as") the existing Section 5 in covered jurisdictions, I don't think that's the thrust of Justice Kennedy's concern.

But, again, perhaps I just have a more generous reading of the transcript. And perhaps I'm simply less inclined to over-read conclusions into the oral argument as a whole, anyway.

A version of this discussion was originally emailed to the Election Law Listserv.

Oral argument as theater

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

​I've discussed the irrelevant questions raised by justices on the Supreme Court at oral argument. Why do they do it?

Some have characterized the current Court as a "hot bench," or a group of justices who ask a number of questions during oral argument.​ (At a recent event at Harvard Law School, Dean Martha Minnow raised this point to Justice Clarence Thomas, known for his silence on the bench, and he expressed some uncertainty as to what that term meant.)

And it's an era when observers are increasingly obsessed with the Court, ranging from highly-specialized appellate practices, to ​exorbitant bonuses for Supreme Court clerks, to media pursuits of clerks' families to glean how a justice might rule, to law schools boasting each time a justice speaks there, to toy figurines or baseball cards of the justices, to obsessive chronicling of the justices' hiring. It's no surprise, then, that cameras in the courtroom is another manifestation of this obsession, one that circles around oral argument. Another obsession at the Court include counting up the number of times each justice cracks a joke that yields laughter.

​It's little surprise, then, that the justices on the Court take their cues from the culture surrounding them (and here my armchair psychiatry kicks in)--a quasi-celebrity culture that rewards brash and bold bits that cater to core constituencies. Oral advocacy is no longer tasked solely to the counselors before the Court; the justices themselves can inject one-liners and miscellany that appease those inclined to support a justice's position.

And, I posit, a part of this is generational--which means the situation will get worse. Consider the examples I raised in Shelby County v. Holder. I cite five justices--and four of them (Roberts, Alito, Sotomayor, and Kagan) are the newest justices, all confirmed since 2005, all under 65. Three other justices (Kennedy, Ginsburg, and Breyer), confirmed before 1995 and nearly 75 or older, have been less prone to ask irrelevant questions. (Justice Scalia being one outlier, older and more inclined to ask provocative or irrelevant questions; Justice Thomas being the other, inclined to silence on the bench.) If I may make a slightly more generalized comment, this is fairly consistent with how the questions proceed at argument: Justices Kennedy, Ginsburg, and Breyer tend to be the most inclined to resolve doubts in their own minds and ask serious questions of the advocates; the other five who ask questions tend toward the more flashy, the more sound bite-oriented, the more politically-charged.

So when Justice Kennedy identifies an "insidious dynamic" that may come to the Court should proceedings be televised, he has good reason for concern: that dynamic has already found its way to the Court.

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.

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.