Verrilli said that was not the government's argument, but that Congress decided in 2006 that Section 5 of the Voting Rights Act was still needed to protect the voting rights of minorities. The section requires nine states, mostly in the South, and local governments in other states to "pre-clear" any changes in voting laws with federal authorities.
Justice Antonin Scalia responded by saying flatly that he thought it was "not the kind of question you can leave to Congress," because it was impossible for elected representatives to vote against such a measure.
The act has come to be seen as a "racial entitlement," Scalia said, and "I am fairly confident it will be reenacted in perpetuity" no matter how much progress the states make in eliminating discrimination.
Verrilli responded that, in the amendments passed after the Civil War, the Constitution quite clearly gives Congress express power to enforce voting rights and said it would be "extraordinary" for the court to second-guess its judgment in reauthorizing the act by nearly unanimous margins in 2006.
The oral arguments, which extended beyond a scheduled hour, revealed the court at its most ideologically polarized. The court's four liberals came armed with statistics about how minority voting rights were still more threatened in the states singled out in Section 5 than the rest of the country, and warning about the need for judicial restraint.
When Burt Rein, lawyer for an Alabama county that is the named challenger, said the court must conclude that Congress was wrong to find that reauthorization of Section 5 was necessary, Justice Elena Kagan responded:
"That's a big new power you've given us."
Justice Sonia Sotomayor said, "Why should we make that judgment and not Congress?"
It has been clear since the court accepted the challenge from Shelby County, Ala., that Section 5 hung in the balance. Opponents of Section 5 carefully nurtured the case to get the issue back before the court. Section 5 covers Alabama, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as Alaska and Arizona.
The court heard a similar case in 2009, but decided it narrowly and sidestepped the question of whether Section 5 should be declared unconstitutional.
The court has upheld Section 5 and the formula used in deciding which states should be covered each time the law has been reauthorized since its initial passage in 1965.
The liberal justices told Rein that his client and the state of Alabama were not the success stories that would make the law seem unnecessary.
Justice Ruth Bader Ginsburg said that no one contested that conditions in the South had changed, but that Mississippi, Alabama and Louisiana were still the states where violations of the Voting Rights Act were most likely to occur.
Kagan said that almost any formula Congress devised to indicate where Section 5 was still needed "would capture Alabama."
But Roberts, questioning Verrilli, said voter registration and turnout among blacks in Alabama was better than in Massachusetts.
Justice Samuel A. Alito Jr. said it made no sense that some states were covered and others were not, and asked why the law should apply to Virginia but not Tennessee or some places in the Bronx rather than Brooklyn.
How far the court goes in deciding the case will most likely be determined by Justice Anthony M. Kennedy. He seemed particularly disturbed, as he did four years ago, by the federalism problem that arises from treating some states differently than others.
"Times change," he said.
Kennedy suggested several times that another part of the law, which applies to the whole country, is enough to prevent discrimination.
One possibility for the court would be to keep Section 5 but to declare that the formula used in selecting the covered states, which is based on 1972 data, is outdated and must be revisited. Proponents of the law say that would effectively doom Section 5, because it would be so hard to get a new formula through a partisan and polarized Congress.
The case is Shelby County v. Holder.
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