Finally, Some Intestinal Fortitude From Progressives on the Supreme Court

Dana Milbank

Opinion Writer

Sotomayor, Kagan ready for battles

By Dana Milbank,

Feb 27, 2013 11:43 PM EST

The Washington PostPublished: February 27

For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.
As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.

The acerbic Scalia, the court’s longest-serving justice, got his latest comeuppance Wednesday morning, as he tried to make the absurd argument that Congress’s renewal of the Voting Rights Act in 2006 by votes of 98 to 0 in the Senate and 390 to 33 in the House did not mean that Congress actually supported the act. Scalia, assuming powers of clairvoyance, argued that the lawmakers were secretly afraid to vote against this “perpetuation of racial entitlement.”
Kagan wasn’t about to let him get away with that. In a breach of decorum, she interrupted his questioning of counsel to argue with him directly. “Well, that sounds like a good argument to me, Justice Scalia,” she said. “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.”
Scalia replied to Kagan, “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.”
Justice Stephen Breyer defused the tension. “I don’t know what they’re thinking exactly,” he said, changing the subject.
The styles of the two Obama appointees are different. Sotomayor is blunt and caustic, repeatedly interrupting. In an opinion this week, she harshly criticized a Texas prosecutor for a racist line of questioning. She has been on the interview circuit publicizing her memoir.
Kagan is choosier about when to interject herself, but she’s sardonic and sharp-witted. (“Well, that’s a big, new power that you are giving us,” she said, mockingly, when a lawyer tried to argue that the justices should overrule Congress’s discrimination findings.)
Both are more forceful than the Clinton appointees, the amiable Breyer and the frail Ruth Bader Ginsburg. The two new justices are sending a message to the court’s conservative majority: You may have the votes, but you’re going to have a fight.
Wednesday’s voting rights case was typical. Surprisingly, the five conservative justices seemed willing to strike down a landmark civil rights law (the provision that gives extra scrutiny to states with past discrimination) that was renewed with near-unanimous votes in Congress. Conservative jurists usually claim deference to the elected branches, but in this case they look an awful lot like activist judges legislating from the bench.
Sotomayor allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “Assuming I accept your premise — and there’s some question about that — that some portions of the South have changed, your county pretty much hasn’t,” she charged. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?”
Moments later, Kagan pointed out that “Alabama has no black statewide elected officials” and has one of the worst records of voting rights violations.
Scalia and Justice Samuel Alito tried to assist the Alabama county’s lawyer by offering some friendly hypotheticals, but Sotomayor wasn’t interested in hearing that. “The problem with those hypotheticals is obvious,” she said, because “it’s a real record as to what Alabama has done to earn its place on the list.”
Sotomayor continued questioning as if she were the only jurist in the room. “Discrimination is discrimination,” she informed him, “and what Congress said is it continues.”
At one point, Justice Anthony Kennedy tried to quiet her. “I would like to hear the answer to the question,” he said. The lawyer got out a few more sentences — and then Kagan broke in.
Sotomayor continued to pipe up, even when Solicitor General Donald Verrilli was defending the Voting Rights Act — at one point breaking in as Alito was attempting to speak. Chief Justice John Roberts overruled her. “Justice Alito,” he directed.
Scalia was not about to surrender his title of worst-behaved justice. He mocked the civil rights law as he questioned the government lawyer. “Even the name of it is wonderful,” he said. “The Voting Rights Act: Who is going to vote against that?” (Verrilli cautioned him not to ignore actual votes of Congress in favor of “motive analysis.”)
But Scalia’s mouth was no longer the loudest in the room. When the Alabama county’s lawyer returned for his rebuttal, he managed to utter only five words — “Thank you, Mr. Chief Justice” — before Sotomayor broke in.