Bert Rein’s K Street office conveys a certain droll humor with its souvenirs and toys—including a Sesame Street doll of that other Bert. With his name on the door of his firm, Wiley Rein, the 71-year-old sits atop Washington’s legal profession, where he regularly lands on those “Best Lawyers” lists. Still, it wasn’t until this winter that he’d ever argued a case before the Supreme Court. Rein has likened himself to Satchel Paige, the famed Negro Leagues baseball player who didn’t become a major-league rookie until he was 42.
The analogy has a certain resonance both in terms of race and age. Rein is challenging the Obama Justice Department in two important cases dealing with race. In December, he went before the high court on behalf of Amanda Fisher, a white student, who argues that the University of Texas unfairly denied her admission. On Wednesday, he’ll argue for the abolition of a key provision of the 1965 Voting Rights Act. “They’re not the same case, but there’s a thread between them,” says Rein, surrounded by briefs from the upcoming case. “When you pick out groups and say, ‘You have to do more,’ what’s the justification for that?”
No one can be sure what the Supreme Court will do with the two cases that Rein, a veteran of the U.S. Chamber of Commerce, is carrying. Last year’s surprise ruling upholding the Obama health care law’s central tenet, the individual insurance mandate, certainly humbled legal observers. But while it’s a reasonable bet that the Roberts Court won’t abolish the voting-rights law, it will almost certainly tinker with decades-old racial remedies that the conservative justices see as having gone too far.
That the Court decided to take the Voting Rights Act case at all is a sign that the conservatives are interested in some sort of rollback. At issue is not the entire law but mainly its Section 5, a temporary provision that’s been renewed a number of times by Congress since 1965. Under Section 5, the Justice Department must preclear for certain jurisdictions any changes in their voting procedures—say, an adjustment in voting hours or a new ballot. This requirement was aimed mostly at Southern states that had a history of denying blacks their right to vote, not only through brute force but with subterfuges such as poll taxes and literacy tests. Congress saw Section 5 as the only way to secure those rights before they could be taken away. It still does. In 2006, renewal of the Voting Rights Act passed the House by almost 400 votes and the Senate by 98-0.
The Supreme Court upheld Section 5 for decades. But a shift came in 2009 when the Court heard a challenge from a utility district in Texas. Although Chief Justice John Roberts used the occasion to laud the act, he also warned that Section 5 “now raises serious constitutional issues.” Enter the conservative advocacy group Project on Fair Representation. Led by a conservative lawyer, Edward Blum, the organization found a willing plaintiff in Shelby County, Ala., a bedroom community near Birmingham where local officials saw Justice Department decisions as meddlesome and unconstitutional. Blum brought in Rein, and the case was rolling.
Rein and his allies note that Section 5 relies on a formula in the statute based on past use of voting tests and other measures to determine which jurisdictions have to be precleared, and they argue that it’s a blunderbuss. Indeed, some states and cities have fallen under Section 5’s sway even though they had not a thing to do with Jim Crow—some towns in New Hampshire, for example—while Tennessee is not covered. Among those filing amicus briefs in the Shelby case is the state of Alaska, which falls under Section 5. The state’s lead attorney on the case, Margaret Paton Walsh, contends that Justice Department lawyers have micromanaged everything from the distribution of voter guides—in English, Spanish, and Tagalog—to the migrant workers at the state’s fish canneries, to forcing the state to print special ballots for tribes that have only an oral tradition. “We’re thousands of miles away,” she says, “and they don’t understand that things can be different and funky here.”
On the opposite side is an array of civil-rights groups, assorted state attorneys general, and, most important, the Justice Department. Their argument is that voting-rights abuses continue and that Section 5 is more scalpel than meat ax. “There really is no adequate substitute,” says Robert Kengle, codirector of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law who once served in the Justice Department’s Voting Rights Section. Advocates argue that the end of Section 5 would, among other things, mean having to comb through the minutes of county meetings to know which cases to take to court under other parts of the law that allow suits to be filed.
So how might the justices sort this out? Roberts will likely tread carefully before jettisoning a key provision of a law beloved and backed overwhelmingly in Congress. Justice Anthony Kennedy, 76, may not want ripping apart the historic act to overshadow his reputation as a centrist jurist. And then there’s the history of race cases in recent years where the high court has bobbed and weaved, allowing some remedies to survive and rarely wiping out entire regimes. Even a prominent critic of Section 5, Abigail Thernstrom, vice chair of the U.S. Commission on Civil Rights, predicts it will survive. What is certain to rise is the level of skepticism that such remedies are required in the modern world. As recently as 2003, when William Rehnquist was chief, the Court upheld an affirmative-action plan at the University of Michigan. But in doing so, then-Justice Sandra Day O’Connor noted that such measures might not be needed in 25 years. The Roberts Court seems more than willing to move up that expiration date.
This article appears in the Feb. 16, 2013, edition of National Journal as Close to the Edge.