I want to see some people who constantly complain about activist judges crawl down Scalia's, Kennedy's, Roberts' and Alito's throats about this.
Kennedy acknowledged that the provision has been successful in rooting out discrimination in voting over the past 44 years. But times have changed, he said, questioning Congress' judgment in 2006 that it was needed for another 25 years.I bolded what I saw as the most egregious example of what I'm talking about here, but the whole story seems fraught with this problem, so far as I can tell. SCOTUS ought to be talking about whether Congress exceeded their power in passing the law, not questioning Congress' judgment in passing it. Their job is is to determine constitutionality, not override what they simply don't like, but this really feels like the latter here.
"Democracy was a shambles," Kennedy said of the era when the law first was enacted. "That's not true anymore."
When Justice Department lawyer Neal Katyal pointed out that the high court has upheld previous extensions of the law, Justice Antonin Scalia dismissively replied, "A long time ago."
At another point, Chief Justice John Roberts asked, "At what point does that history ... stop justifying action with respect to some jurisdictions?"
Katyal did not specifically answer that question. But he said, "After 16,000 pages of testimony, 21 different hearings over months, Congress looked at the evidence and determined that their work was not done."
At least that's what conservatives complain about when they screech about "activist judges" interpreting the Constitution as a flexible document. That's what they complain about when subjects like the right to privacy or same-sex marriage come up for debate--"No legislating from the bench!" they scream. "Originalism!" they holler. Until it comes to a subject like this one, where race is at issue, and where laws that are in place and have been upheld for years are at question--then it's fine for Justices to question Congress's judgment in passing a law, according to them.
And just to be clear here, if that's really what the conservative justices are doing, if they're questioning Congress's judgment in passing the law as opposed to deciding whether or not the law passes Constitutional muster, then they're wrong for doing it. They are overstepping their bounds. When courts overturn either laws or precedent, they need to have more in hand than simply a disagreement with Congress--they need to have an argument that Congress has violated the Constitution. That's not what it sounds like is happening here.
I'll wait to see some originalist disagree with what the Court is doing here, but I'm not going to hold my breath for it.