For all the attention paid to growing Hispanic influence on elections and a rising class of Hispanic political stars, the most influential Hispanic in American politics holds an unelected position. And as a major Voting Rights Act case demonstrated Wednesday, Supreme Court Justice Sonia Sotomayor seems eager to play -- and even magnify -- that leading role.
Witness her recent book tour, which has generated scads of reviews, profiles and other articles, not to mention large crowds. Or the book itself, a bestseller that gives a frank account of her upbringing as a poor Hispanic woman, not unlike the press statements she’s made during and before this recent spurt of publicity. For one thing, Sotomayor readily admits she got into Princeton and Yale Law School via “a special door,” she told the New York Times last month.
And on Monday, Sotomayor took initiative on a case the Court decided not to hear, rebuking a federal prosecutor for racial remarks during a jury trial. While cross-examining the defendant, who was implicated in a drug deal but said he didn't know that that's what was going to happen in his friends' hotel, the prosecutor said: "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you--a light bulb doesn't go off in your head and say, 'This is a drug deal?'"
Though the Court couldn't take the case because the defendant's lawyer didn't object, Sotomayor wrote a note "to dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." After scolding the prosecutor for tapping a "deep and sorry vein of racial prejudice" in his conduct, Sotomayor concluded with a further, simple admonishment: "I hope never to see a case like this again."
Sotomayor filled a role as a minority leader in a different way in the Supreme Court Wednesday, when the justices heard oral arguments in Shelby County, Ala. v. Holder, a case brought against a key provision of the Voting Rights Act, which Congress enacted to answer minority voter suppression in the South and enforce the rights codified in the 14th and 15th Amendments. The issue in question is whether Congress could single out certain states and localities for special oversight of their voting regulations, but it also necessarily touched on whether race-based voting problems have been solved or ameliorated in some areas.
Sotomayor, the most active liberal justice in Shelby’s oral arguments, was emphatic that those problems still exist. Less than a minute into Shelby County attorney Bert Rein’s opening statement, Sotomayor interrupted to contest the notion that the South had changed. “You are asking us to ignore your record,” Sotomayor said of Rein’s argument that the Court should keep the federal government from requiring “preclearance” of voting changes in Alabama and select other states.
Nearly four years after Sotomayor’s nomination became embroiled in a fight over judicial “empathy,” Wednesday’s arguments demonstrated that every justice approaches a case with the real-world effects of the law in mind. But Sotomayor and the Court’s conservative majority obviously had very different subjects of those effects in mind.
Conservative justices and the attorney for Shelby County focused their points on the “equal dignity” and sovereign rights of states to exercise their own decisions without federal interference, which is applied unequally in the South under the Voting Rights Act.
Sotomayor focused more on whether the law still helped individual citizens exercise their right to vote. As Shelby County, Chief Justice John Roberts, and others advanced information that minority voter registration is now better in some covered states than in other states, Sotomayor’s fellow liberals countered that new, secondary forms of vote discrimination – like moving a polling place in a minority neighborhood before an election – had cropped up that were no less nefarious. Sotomayor interjected to take issue with the whole premise.
“I don’t know if I’d call anything secondary or primary,” Sotomayor said from the bench. “Discrimination is discrimination.” Left unsaid, but impossible to miss, was the notion that people like her still reap benefits from the Voting Rights Act, which Justice Antonin Scalia described as a “racial entitlement” Wednesday.
The Voting Rights Act was enacted to combat the lingering effects of decades of segregation – and centuries of slavery before that – for African-Americans in the South. But with Hispanic voting power on the rise, the Act means just as much to that community in the modern setting.
The most high-profile VRA case in the past year, a preclearance hearing for Texas’s congressional and legislative redistricting proposal, resulted in a major defeat for the Lone Star State in D.C.’s district court. Most of the evidence the D.C. court cited in striking down Texas’s maps focused on intentional discrimination against Hispanic voters’ influence. In the state’s 23rd Congressional District, the court cited evidence that Texas’s Republican mapdrawers intentionally removed Hispanic voters from the district and replaced them with non-voting Hispanics, keeping the demographic numbers the same but hopefully altering future election results in their favor. In a footnote, the district court decision noted that there was so much evidence of discrimination that it didn’t even need to address all of it to reach a decision.
At the end of Wednesday’s Supreme Court hearing, Sotomayor asked a question of Rein almost as soon as he reached the podium for his rebuttal. “Do you think Section 5 was voted for because it’s a racial entitlement?” Sotomayor asked, smacking back at Scalia. “Do you think racial discrimination in voting has ended?”
The Shelby County lawyer’s reply, in essence, was, “no, but…”, and he went on to argue again that it is unfair for the county and state to be subject to additional federal regulations when, by some measures, its voting problems are no greater than those of non-covered jurisdictions. As so often happens at the Supreme Court, both parties stayed firm in their positions. Sotomayor remained fixated on the individual people—especially, even though it was unsaid, her own.