Alabama counsel, after brief banter: -- it is up to the Court to determine whether the problem indeed has been solved and whether the new problem, if there is one --"
Kagan, jumping in: "Well, that's a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick."
Alabama counsel immediately denied he'd meant what he'd just said, Justice Breyer spoke up to smooth things over, and the hearing was soon over.
Associate Justice Anthony Kennedy is widely thought to be the swing vote in the case, deciding whether it was constitutional for Congress to extend the Voting Rights Law to address a problem it found still existed, albeit in sometimes new forms. Kennedy was active in the hearing, but his comments were far less pointed than some of his peers, although at one point he asked about applying the law to all the states and not just the ones with an overt record of voting rights discrimination.
But Kennedy also inquired, in effect: how is Shelby County hurt by the formula in the law when the county's record of voting rights discrimination would be caught by almost any rational formula.
Although Associate Justice Clarence Thomas, 65, has benefitted from the Voting Rights Act, as well as actual racial entitlements, perhaps more than any other justice, he had nothing to say during the hearing.
So Is Justice Scalia
Just Being Provocative?
In the midst of initial reaction to Scalia's comments about the "perpetuation of racial entitlements" and other jibes, MSNBC commentator Rachel Maddow compared the justice to an internet troll. Maddow, who was in the audience for the Supreme Court's oral argument February 27, appeared as a guest on The Daily Show with Jon Stewart the following day, [7]where she said[7]: "It's weird to see Antonin Scalia in person. It's weird."
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