After Supreme Court Ruling On Affirmative Action, What's Next?

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune

The Supreme Court issued its decision Monday in Fisher v. the University of Texas, which challenged the constitutionality of the use of affirmative action in college admissions. The court sent the case back to the lower court to apply "strict scrutiny" to the University's admissions policy.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. We're going to focus most of this hour on the United States military and look ahead at what kind of changes to anticipate after Iraq and Afghanistan, but first to the Supreme Court. Earlier today, the justices chose not to issue a sweeping opinion on affirmative action. In a closely watched case, Fisher versus the University of Texas, the court ruled seven to one to send the case back to a lower court, but on the way it also made it clear that any use of racial preference will come under a more skeptical eye from now on.

In a case that centered on admissions policies at the University of Texas, Justice Anthony Kennedy wrote for the majority, quote, "the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity."

Some analysts call the decision a compromise rather than a punt, but the ruling leaves open many questions about what's next for affirmative action. We're joined now, as we often are, by David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune newspapers. He joins us by phone from his office here in Washington. David, always good to have you with us.

DAVID SAVAGE: Hi Neal.

CONAN: Waiting a long time for this decision on a case the justices seemed to have picked to issue a sweeping ruling on affirmative action.

SAVAGE: Yes, this is one that the most surprising aspect of it is what they didn't do. When this case came up for argument in October, it sure looked like the case that the conservatives had wanted to basically say no to affirmative action. Five of them are very familiar with this subject and have in the past been very skeptical of the idea of using race.

So the first surprise is why it took so long, and then the second surprise is sort of what they finally came up with, which is - you described it as sort of a skeptical tone to - sends it back to a lower court and says the university must show that affirmative action is really necessary, there's no other so-called race-neutral alternative that would bring about diversity on campus.

But I think from the larger perspective is most colleges and universities would sort of view this with sort of a sigh of relief and say, well, this will not force us to change anything.

CONAN: So what happens when it goes back to a lower court?

SAVAGE: My guess is that the lower court will - I think there's a good chance they will reject the Texas plan, but it's because of something specific to Texas. Texas has this so-called top 10 law that says that if you are a - in the top 10 percent of your high school graduation class, you can get into the University of Texas. And that law, over time, has led to a steady influx of Hispanic and to some degree African-American students.

So as each year goes on, it's sort of harder to argue that the university really needs affirmative action in order to bring about diversity on campus.

CONAN: So in that case, would it be appealed back up to the Supreme Court?

SAVAGE: It could be, but I think it would no longer be, you know, a national case that we're all watching. In other words, it's something that's particularly - Texas has this law that seems to have worked in a way that not many other states could do the same thing.

I will say there's sort of a moderate, liberal view is that a lot of universities, state universities in other - Florida, North Carolina, whatever, ought to try something like this, that is recruit or admit the very best students in some of the, you know, poorer, lower-income high schools in the state.

And that's a way to - you're rewarding students for good performance. You're bringing about diversity, and you're not having so much weigh on SAT scores and test scores.

CONAN: Some people would say you're setting a lot of those kids up for failure, though. They'll be admitted, but they won't make it past the freshman or maybe the sophomore year.

SAVAGE: That's actually what people thought in Texas, Neal, eight or 10 years ago, in the late '90s when this was really getting underway. People said a lot of these students won't do well. But in fact the graduation rate at the University of Texas has been going up steadily, and when I went down there in the fall, and a lot of these admissions people admitted that they were pleasantly surprised that those students who were good students in high school, did well in high school, may not have great test scores, nonetheless did just fine at the University of Texas.

CONAN: Now is this truly a compromise, seven to one?

SAVAGE: Yes, I think the interesting backstory here is Chief Justice Roberts. I've been writing about this a little bit, that in the last couple years, John Roberts has had a choice, as do - he's a conservative guy. Do you join the conservatives for big, sweeping rulings, Citizens United is one that you and everyone remembers, a very broad ruling, five to four, allowing corporate - that ruling set off a real backlash.

And Roberts has really wanted to avoid fractured, five-to-four rulings that go very far. He's been very interested in finding sort of the middle ground, and this is a classic example of they found a middle ground that the conservative justices and the liberal justices could agree with, and, you know, decide something in a way that is not an earthquake in either way.

CONAN: People will look at that number, seven to one, and realize it does not add up to nine. Justice Kagan did not participate in the case. Do we know why?

SAVAGE: Yes, she was in the - she was the solicitor general the first year of the Obama administration. This case was under appeal. And her rule has been that if she had played any part in approving appeals or doing anything on a case, she will not sit on it when it reaches the Supreme Court. So that's why she stayed out of this one.

CONAN: And the one who dissented and why?

SAVAGE: Ruth Ginsburg dissented, and her view was that the top 10 plan is a race-conscious plan after all. It was done to improve diversity on campus. And her view was that we ought to just go ahead and approve the use of race in situations like this, and she would have just flat out upheld the University of Texas policy.

I thought it was quite interesting that Sonia Sotomayor and Justice Stephen Breyer joined sort of, you know, this moderate conservative bloc to say let's send this back for another close look by the lower court.

CONAN: And is this going to encourage changes at other state universities? Is this going to encourage more lawsuits?

SAVAGE: I think it's hard to gauge. If you were one of the conservatives who wanted to challenge affirmative action, I would think this is a little depressing. You spent years trying to get a case at the Supreme Court, and you don't - you know, it's not much of an incentive to do it again.

I think it may encourage a few big states, as I mentioned, to try to move away a little bit from weighing race and trying to find a way, like this top 10 law, rewarding top graduates, find a way to bring in more minority students but without giving an explicit preference in the admissions policy.

CONAN: Now some will remember there was another case I think from the University of Michigan that was also broadly about affirmative action. Does the Texas case supplant that, or are we awaiting a decision on the Michigan case, as well?

SAVAGE: We're waiting a decision on the Michigan case, as well. That will be argued in the fall. The lower court decided that on a different basis, basically said that they threw out - the lower court threw out a state proposition, a ballot measure that prohibited affirmative action in Michigan. And so that's a different legal issue, and the court's going to hear that case and decide it next year.

CONAN: Well, a couple of other interesting cases they picked up for next year announced today, one of them McCullen v. Coakley, which takes on the issue of protestors at abortion clinics. And as I understand it, their case argues that the law in Massachusetts that prohibits them from barring entry to - they have to be a certain distance away from entries to abortion clinics, that violates their right to free speech.

SAVAGE: Yes, this is sort of an old issue that the court dealt with about 10 or 12 years ago and sort of settled on a - and that sort of seemed like a compromised position, which was to say you could have a buffer zone around the entrance to an abortion clinic, so patients and doctors could go in and out, but the protestors could stand on the sidewalk and hold signs or protest.

And now the court's going to revisit a Massachusetts law that does something like that, and my impression - my sense of it is is that the conservative justices think this is a little bit unfair to abortion protestors, that they should be able to walk up to somebody on the sidewalk and say here's a pamphlet, or you should reconsider your decision. They're going to allow, I think, a little more leeway for sidewalk protestors to speak to patients.

CONAN: Another case that will be also closely watched, NLRB versus Noel Canning, and that's about the president's power to so-called recess appointments.

SAVAGE: Yes, that's a big sort of a political - in a sense, Washington political story. It's a big deal for the Obama administration because the House Republicans have used their minority and the filibuster rule to block a vote on a lot of Obama nominees for agencies like the National Labor Relations Board and this Consumer Financial Protection Board.

Obama turned around and made a recess appointment when the Senate was out for three weeks early January of 2012. A lower court ruled that you can - really narrowed the president's recess power and said only when the Senate has formally adjourned after two years can the president make a recess appointment. So President Obama's lawyers appealed to the Supreme Court, said you should reverse that decision. So that's what they're going to take up in the fall.

CONAN: And it's a sticky case because the administration uses this frequently, and the previous administration did, as well, this ability to make recess appointments over the objections of a faction in one of the opposite party in the United States Senate. But nevertheless, without this power, it's going to be extremely difficult to fill some of those jobs.

SAVAGE: Absolutely. This - as you said, for a long time, presidents have done this as sort of an emergency way to get around a recalcitrant Senate. The situation is particularly bad now because, as I say, the Republican minority has blocked a lot of people not because there's anything wrong with the nominees, it's they just don't like the agencies. They don't like the NLRB, and they don't like this Consumer Protection Bureau.

So the president has no way to get somebody appointed to those offices, and if the court says you can't do it as a recess appointee, then the president can't put any one of his appointees sort of in charge of the agency.

CONAN: Well, they're still awaiting, we are still awaiting, decisions in three other big cases, on the Voting Rights Act, on gay marriage in California and on the Defense of Marriage Act. And the court announced today that they are adding tomorrow as another decision day.

SAVAGE: Yes, that's right. They'll have decisions tomorrow, and I assume, and maybe I hope, Wednesday or Thursday. There must be five or six to go, and as you said, there's at least three big decisions. So they'll have decisions tomorrow and then I assume one other day this week.

CONAN: David Savage, we'll talk to you then.

SAVAGE: Thanks, Neal.

CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. He joined us from his office here in Washington. After a short break, we'll switch gears and look ahead to what's coming for the U.S. military with retired General Mike Davidson, retired Captain Rosemary Mariner and John Nagl. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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What Changes After Supreme Court Ruling On Voting Rights Act

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune
Richard Hasen, professor, University of California Irvine School of Law
Ilya Shapiro, senior fellow in constitutional studies, Cato Institute
Lani Gunier, professor, Harvard Law School

In a 5-4 decision, the Supreme Court struck down a key provision of the Voting Rights Act of 1965, stating that the legislation was based on now outdated data. The ruling removes the coverage formula that required federal oversight for voting processes in nine states.

Copyright © 2013 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. This morning in a much anticipated decision, the Supreme Court struck down a key provision of the 1965 Voting Rights Act. Writing for a five-four majority, Chief Justice John Roberts ruled that Congress' action to protect minority voting rights in nine states was based on outdated data, and the formula used to determine which areas were subject to federal oversight was thus unconstitutional.

Civil rights activists say the law is still needed to ensure fair political representation and access to voting; opponents say the times have changed, and a law that holds some states to different standards than others is no longer needed.

If you live in a state covered by this part of the Voting Rights Act, what changes for you? Give us a call, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Later in the program to Beirut and NPR's Deborah Amos as Saudi Arabia declares it cannot stand silent in the face of Iranian and Hezbollah intervention in Syria.

But first the Voting Rights Act, and we begin with David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune. David, a busy week for you; nice to have you back on the program.

DAVID SAVAGE: Hi Neal.

CONAN: Everyone agrees the Voting Rights Act has been the most effective piece of civil rights legislation. So what's changed in the view of that five-four majority?

SAVAGE: Well, their view is that it's been so effective it's no longer needed, that in the 1960s something like 20 percent of blacks, six percent in Mississippi, were registered to vote. Now John Roberts, the chief justice, said African-American voted at roughly the same rates, sometimes at a higher rate, than whites in the southern states.

So therefore, the reason that the Voting Rights Act was needed, this special scrutiny for the southern states, is no longer needed today, and therefore he said it violates the states' rights to the principle of equal sovereignty, that states deserve to be treated equally unless there's some great reason for it, and the reason no longer exists to treat the southern states differently.

CONAN: Many thought the court would strike down Section 5, that's the part that requires pre-clearance, in other words even before you move anything as small as a voting booth, you have to get clearance from the Justice Department. Instead, the ruling targeted Section 4, which outlined the various areas that are subject to this special scrutiny.

SAVAGE: I think practically speaking, Neal, though, that the result will be the same, that unless and until Congress could come up with a new formula, Section 5 won't have any effect, that you're right to say that technically they're not striking down Section 5, and so Congress could come up with a new formula, but since the court struck down the formula for using under Section 5, at this moment it doesn't have any effect.

CONAN: Some would argue that the - as recently as last year the Voting Rights Act was the centerpiece of the decision by federal courts to strike down congressional districts drawn by the state of Texas, which they said discriminated against Hispanics.

SAVAGE: Yes, I thought some of what happened over the last year might cause some members of the court to think twice, that a voter ID law in Texas was blocked, that as you said the redistricting plan was blocked. Now it is true that there were a lot of the voting cases that were argued and debated and fought over last year were in the north, were in Pennsylvania, Wisconsin, where state courts intervened.

But there was enough of problems in the southern states, there were some in Florida, South Carolina, that I thought it might cause the justices, as least some of them, to think, well, maybe this law still is needed today. But it is the case that the five conservative members of the court have been very skeptical of the Voting Rights Act for a long time.

They almost struck down this provision four years ago, and now they've done it today.

CONAN: And that was - there is also the question, though, of deference to the judgment of Congress, which has reauthorized this as recently as 2006 under a Republican president, a Republican Congress and a Republican Senate.

SAVAGE: Yes, that's why a lot of the people who are critical of this say this is really an example of judicial activism because the 15th Amendment says Congress shall have the power to enforce this provision through appropriate legislation. Congress passed the Voting Rights Act in 1965. It has extended it several times since then. As you said, it was - how many times has that happened, a unanimous vote in the Senate, a near unanimous vote in the House to extend it, a Republican Congress, and the Supreme Court turns around and says no, sorry, it's really not needed.

CONAN: And the other part, though, is that the data on which those extensions were made, well, Justice Roberts says they're 40 years old.

SAVAGE: Yes, that's right. It is true that this law is based on history and bad behavior in the past, and that's how these states across the South are - that's why they undergo this special scrutiny. I will say on the other side, though, that there have been more problems in Alabama, Mississippi, Louisiana, through other voting rights suits, that there are more problems today regarding allegations of discrimination in voting in those states.

And some of the advocates thought that the court should look at that there still are some real problems in those states, and therefore you should uphold it on that basis.

CONAN: And we think of this again in terms of congressional elections or presidential elections. This covers everything down to the school board.

SAVAGE: Yes, there is a view that this decision today will have - its biggest impact will be in small town, school board, city council races, that if the - make up a state. If the state of Georgia or Alabama does something in its laws or in its statewide redistricting, there will be a lot of attention given to that, and there may be a lawsuit over it if it's discriminatory.

But if it's a small town, and it says, well, we used to elect people by districts, now we're going to do it at large, that is citywide, and the effect of that means that the - suppose if a third of the residents in that town were black, two-thirds were white, that would allow, that could allow the two-thirds who are white to elect all the members of the city council.

It's those kinds of changes that the Voting Rights Act and Section 5 have blocked. Now those kind of changes will go into effect, and it would be very hard to challenge them afterwards.

CONAN: Well, also today the court said its final decision day will be tomorrow. So we are going to expect, then, decisions on Proposition 8 and the Defense of Marriage Act.

SAVAGE: Yes, another interesting day.

CONAN: We'll talk to you tomorrow, David.

SAVAGE: Thanks, Neal.

CONAN: Get back to work. David Savage, Supreme Court correspondent for the Los Angeles Times and the Chicago Tribune, from his office here in Washington. Joining us now is Rich - excuse me, Rick Hansen, a law professor at UC Irvine, author of "The Voting Wars: From Florida 2000 to the Next Election Meltdown." He joins us by Skype from Hawaii. Nice to have you with us today.

RICHARD HANSEN: Glad to be with you.

CONAN: And what changes now that this section of the Voting Rights Act has been struck down?

HANSEN: Well, what changes immediately is Texas' voter ID law, for example. It was a court decision blocking that law from going into effect. There was a petition to the Supreme Court, which was awaiting decision today, and already the attorney general of Texas announced that Texas' voter ID law is in effect and on the books.

And so if someone doesn't like it, they'll have to try to bring suit under a different provision under the Voting Rights Act or under the Constitution, and that road is going to be a lot harder. So we're going to see many more laws that used to be put on hold with the burden on states to prove that the laws were not discriminatory going into effect immediately. Now the burden on challengers, minority voting rights advocates, to prove that these laws are discriminatory.

CONAN: And was this the decision you expected?

HANSEN: This was exactly the decision I expected, and the reason is that this is a kind of false judicial modesty that we see in this opinion. Chief Justice Roberts says, well, we're only striking the coverage formula. But the political reality, as everyone knows, is Congress is not going to go back and pick a new coverage formula.

That's why in 2006 they didn't adjust the coverage formula. Politically it would be impossible to single out new jurisdictions which have a greater risk of discriminating against minority voters. And so this is effectively the death of the Voting Rights Act but with the fig leaf that all that's being done here is asking Congress to tweak the coverage formula.

CONAN: So if the Voting Rights Act is now dead, and the burden proof, as you say, has now shifted to the challengers, do you expect that the - as David Savage was saying - the biggest effect is going to be things like, well, redistricting in Texas or those school board and city council decisions - votes?

HANSEN: Yeah, I should say when I said the Voting Rights Act is dead, I mean Section 5 of the act is dead. We still have Section 2 of the act, and that does allow, in cases - in the case that David described of the at-large district, Section 2 would probably be a pretty good tool to make that small jurisdiction have to eventually go back to districts.

It won't be able to put the law on hold, but they will be able to - challengers will be able to get that struck down. But things like voter ID laws, things like more onerous voter registration laws, what we've seen is that challengers have a much harder time under Section 2 of the Voting Rights Act or under the Constitution to get those things struck down than they did to get them blocked under Section 5 both because the burden was on the states to prove that the laws were not discriminatory and because the standard, the legal standard was a somewhat easier one for challengers to the law.

CONAN: And there are any number of states, and counties for that matter, who said look, this was a burden placed on us for historical reasons. We have since corrected that. Look at the numbers. There are many other places around the country where voter turnout, for example, by minorities is much lower than it is here.

HANSEN: That's certainly true, and, you know, some have called Section 5 a victim of its own success. That is, how do you prove that the law is still necessary when it's being an effective deterrent? And both sides on the Supreme Court talked about that today but drew opposite conclusions. For the chief justice, that was a reason to say the law is no longer necessary; for the dissenters, that is a reason to say the law is effective and shouldn't be touched.

And the dissenters pointed to recent problems in these areas, which - in voting, which the dissenters said showed that Section 5 is still serving as a meaningful deterrent.

CONAN: And you talked about Chief Justice Roberts. He has endeavored in every case, if he could, to not rely on five-four majorities, narrowly drawn right along the ideological lines of the Supreme Court.

HANSEN: Well, I think, you know, he tries to put off the five-four decisions. He was able to put off this voting rights decision for four years. But he's got a long-term plan. He has a long vision. He's a young man. He's going to be able to be on the court for a long time. And so long as he has his five-justice conservative majority, I think they're satisfied to slowly move the law in the direction that they want to go.

And if you look at Citizens United, you look at the decision today in the Voting Rights Act, and you can see what's going to come up with affirmative action in the next few years, you can see the writing on the wall.

CONAN: Rich - Rick Hansen, thank you very much for your time today, and we appreciate your taking your time out while you're there in Hawaii to speak with us.

HANSEN: It's been a pleasure.

CONAN: Rick Hansen is a law professor at UC Irvine and write The Election Law blog. He spoke with us by Skype from Hawaii. After a short break, Harvard law professor Lani Gunier, and Ilya Shapiro of the Cato Institute will join us to talk about the decision. We also want to hear from you. If you live in one of those areas that has been covered by this provision of the Voting Rights Act, what changes for you? Give us a call, tell us your story, 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION; I'm Neal Conan. Earlier today, President Obama released a statement after the Supreme Court ruling on the Voting Rights Act saying he was, quote, deeply disappointed. That theme was echoed by Eric Holder, the attorney general, when he spoke a few minutes later at the Justice Department.

ATTORNEY GENERAL ERIC HOLDER: Our country has changed for the better since 1965, but the destination that we seek has not yet been reached. Indeed, a reading of today's opinions demonstrates that every member, every member of the Supreme Court agrees with this fact. As the chief justice wrote, and I quote again, voting discrimination still exists. No one doubts that, unquote.

This is why protecting the fundamental right to vote for all Americans will remain one of the Justice Department's highest priorities.

CONAN: Both the attorney general and the president called on Congress to pass legislation to protect equal access to the polls. If you live in one of those parts of the country covered by Section 4 of the Voting Rights Act, what changes now for you? 800-989-8255. Email us, talk@npr.org. You can also join the conversation online. Just go to npr.org; click on TALK OF THE NATION.

Joining us now is Lani Gunier, a professor of law at Harvard. She led the Voting Rights Project for the NAACP Legal Defense Fund in the 1980s and joins us now from a studio on the campus at Harvard. Nice to have you back on TALK OF THE NATION.

LANI GUNIER: Thank you.

CONAN: And Ilya Shapiro is editor-in-chief of the Cato Supreme Court Review, senior fellow in constitutional studies at the Cato Institute. She joins us by smartphone from her office right here in Washington. Nice to have you with us today.

ILYA SHAPIRO: Good to be on.

CONAN: Lani Gunier, what changes now?

GUNIER: What changes in terms of the Voting Rights Act or what changes in terms of the distribution of political resources in the country at large?

CONAN: Well, why don't we take those one at a time. What's changes with the Voting Rights Act?

GUNIER: Well, the big change with the Voting Rights Act is that Section 5 of the Voting Rights Act is currently dead. And this is a premature death because no one disputes the fact that there are still numerous problems in the covered jurisdictions. It is an ideological death. It reminds me, in fact, of an opinion that the Supreme Court issued exactly 100 years ago, in 1903, and this is an opinion brought to my attention by James Blackshire, who's a civil rights lawyer in Alabama.

And essentially in the 1903 case, the Supreme Court said if the great mass of white people in Alabama don't want blacks to vote, there's nothing we can do about. And that's what I hear in the echoes of the - the case was called Giles versus Harris, and Mr. Giles was supported by Booker T. Washington in this civil rights case. And I feel the same sense of the Supreme Court just denying the role, the important role that it plays in our country and in many ways putting the burden on the people who have been discriminated against, s opposed to the people in power who continue to discriminate.

CONAN: Ilya Shapiro, the decision by the chief justice seems to suggest that more modern history reveals that things have fundamentally changed.

SHAPIRO: That's exactly right. The Supreme Court's ruling today restores the constitutional order, and it recognizes that the country has changed. Remember this case was not about whether there continues to be racial discrimination in voting or even whether that racial discrimination is disproportionate to the covered jurisdictions, which it's not.

It's about whether the same sort of extraordinary conditions still exist on the ground as they did during the Jim Crow era, the poll taxes and ingenious devices and all sorts of disenfranchising, systematic, massive programs that justified the extraordinary, exceptional deviation from the normal operation of our federalist system.

And the court, quite obviously, said that things have changed. Congress has refused to update the coverage formula, still basing it on voting rates and registration rates in 1968 to 1972. And that cannot stand. So if Congress wants to come up with a new formula - I don't think it's capable of doing it even if the political winds were different than they are in the deadlocked Congress now - but they could sure try.

I don't know what kind of things they would try to prove to show that, you know, Jim Crow still exists somehow.

CONAN: Lani, we're going to get to calls in just a minute, but Lani Gunier, that question of resources that you wanted to talk about.

GUNIER: Well, Jim Blackshire, again my colleague in Alabama, recommends that the resources have been taken away from the Justice Department in terms of playing a very important role in overseeing various changes made for racially charged reasons. And he recommends that instead of the Voting Rights Act, since the court has now killed it, that there should be a Voting Rights Act lawyer in every U.S. attorneys' office throughout the country, not just in the South.

And so instead of pre-clearance, every voting change in every county would have to be given to the local U.S. attorney to review, and if there was no problem with it, then the change could proceed.

CONAN: Wouldn't that require another act of Congress, though?

GUNIER: It may require another act of Congress, but it could also be something that Eric Holder could at least experiment with in terms of identifying various places where a U.S. attorney playing a role as the watchdog would be very helpful.

CONAN: And we'll get to calls again in just a minute, but Ilya Shapiro, the attorney general did say as part of that statement we played an excerpt from that he would continue to vigorously uphold the other parts of the Voting Rights Act.

SHAPIRO: Well, as he should. I mean, it's - Section 2 is there to go after racial discrimination, individual instances. The Department of Justice can bring cases. Costs can be shifted from the plaintiffs onto the defendants, or the federal government can take them over. There's no indication, and this is why Sections 4 and 5 are no longer justified, there's no indication that Section 2 cannot do the job.

Indeed in the covered jurisdictions, the voting rates are better for blacks than they are in the uncovered jurisdictions. So if one thing is clear, it's that indeed, the Supreme Court four years ago gave Congress a chance to update, to put some real facts on the bones of an antiquated system, and Congress hasn't done that. And they're welcome to try again, but really on the question of resources, I think we need to reallocate those from these superfluous and burdensome pre-clearance requirements onto the actual cases of discrimination and other areas where the Department of Justice should be taking - going into court.

GUNIER: Can I just...?

CONAN: Go ahead, Lani Gunier.

GUNIER: Can I respond to his last comment because Section 5 is not - or has not been superfluous. It's been extremely important in identifying problems before the problems were put into effect. And it also mattered because it had a deterrent effect, knowing that the jurisdiction was going to have to get pre-cleared, any changes that it made, it required that the jurisdiction be much more self-conscious about the adverse effect on people of color, on even poor people who like people of color can't get to voter registration places because they're not in each census tract, et cetera.

The Section 5 was really important to fight backsliding, as well as to put pressure on the current - the current people in charge of these various covered jurisdictions. So this is a premature intervention by the United States Supreme Court.

CONAN: Let's get some callers in on the conversation. We'll start with - let's see if Brandon(ph) can join us, Brandon is with us from Albion in Michigan.

BRANDON: Hi, am I on the air?

CONAN: You are.

BRANDON: Hi, thank you very much. I'd like to say that we shouldn't be calling this judicial activism because we're actually going backwards. It's more of an ebb than a flow. And I'm from Saginaw, Michigan, which has consistently been one of the top five segregated places in the nation, and Michigan suffers from this. For, you know, a long time. But in the 1800s, it was called the noble paragon of racial progress in the 1800s by the Freeman's Journal.

And so what we've got are these people who are disenfranchised. You know, they're not able to vote. They're not able to get to the voting booth. They're not going to be able to make any progress for them because crime is high, poverty is high, and they're not able to vote. And we need to move forward from this because we're going to see in the next election with a Congress that's tied up, the judicial branch knows this, that Congress is unable to move forward on anything now.

And so by them saying a decree to say Congress you need to come up with a decision when they can barely come up with any decisions at all, it's not going to do any good, and it's going to affect the election until the Republican Party is able to get people who they trust in the executive branch. And until that happens, we're not going to move forward on this. And so, them issuing this answer to say that we'll be able to move forward when Congress makes a decision is an impossibility.

CONAN: Lani Gunier, you accept that Congress is unlikely to enact the kind of changes that Justice Robert laid out.

GUNIER: Yes. And that's why I think Jim Blackshear, who's the attorney in Mobile, Alabama, is right on when he says that this is something that the administration could do on its own, which is to hire U.S. attorneys in every district and have an individual identified as the person who has to review various changes that are going on, and that will then give the jurisdiction a sense that somebody is still watching what's happening.

CONAN: Brandon, thanks very much for the call. A reminder that the Voting Rights Act covered areas not just in the South, where we tend to think they are. Casey(ph) joins us now from La Grange in Texas.

CASEY: Hi.

CONAN: Go ahead, please. You're on the air.

CASEY: Well, I think it would be a great if Congress could come up with a new way to adjust this formula for applying the Voting Rights Act, which I recognize how difficult that could be politically, but I think one of my main concerns is that there might be some areas of our country who don't fall under the blanket area of the South where there is a lot of discrimination in voting areas, or can go for that, especially since a lot of Northern cities are much more segregated now than Southern ones.

CONAN: And indeed, parts of the voting rights - the Section 5 of the Voting Rights Act did apply to places - well, New York City, for example. But as we look at this, Ilya Shapiro, one of the big arguments of the states was we should not be treated differently than other states. We have gone and corrected these errors of the Jim Crow era, just look at the statistics.

CASEY: I think that (Unintelligible)...

SHAPIRO: That's right. If you look at the disparities in voting registration, for example, the best state in the Union is Mississippi and the worst is Massachusetts. Something similar is going on for voter turnout in terms of, you know, kind of self-segregation by race and by other types of communities. Indeed, those sort of trends are more prevalent outside of the coverage jurisdictions, and that's because the coverage formula has not been changed since the facts on the ground, the statistics from 1968 to 1972.

Now, as I said, I don't think Congress could even come up with a coverage formula because the types of systemic and massive disenfranchisements don't exist. There's poverty. There's all sorts of social problems in this country, of course, but it's not an institutional government type of discriminatory regime. And as for Professor Gunier's suggestion of a special prosecutor in each U.S. attorney's office, well, that would be kind of like reconstituting the Section 5 regime. I think that would be held to be unconstitutional in the same way that the court ruled today.

GUNIER: Well, but that I don't think is entirely true. It will, I agree, expensive. But there's no particular adverse effect on any jurisdiction. And in fact if the jurisdiction proves that it doesn't need the U.S. attorney, the U.S. attorney could be sent to a different jurisdiction.

CONAN: Each jurisdiction would be treated similarly then.

SHAPIRO: Well, what I mean, though, is...

CONAN: Yes. Go ahead.

SHAPIRO: What I mean, though, is that you could have people in the attorney's office - in the U.S. attorney's office reviewing voting changes and then deciding to sue if they find something wrong, but you could not have them having to review the rules before they go into effect. That's the whole point of Section 5. Now, with Section 4 struck down and effectively Section 5 with it, there is no federal oversight. There's just Section 2 that applies to the entire country.

CONAN: Casey, thanks very much for the phone call. We're talking about the decision by the Supreme Court today on the Voting Rights Act, with Lani Gunier, a professor at Harvard Law School, and Ilya Shapiro, Cato Institute senior fellow in constitutional studies. You're listening to TALK OF THE NATION from NPR News. Tyler is with us from La Grange in Georgia.

TYLER: Hi. Mr. Conan, thank you very much for taking my call.

CONAN: Sure.

TYLER: I just want to tell Casey we're very jealous here in La Grange, Georgia, that ZZ Top wrote the song about Texas. But I wanted to say that I think it's - something that's missed here in Georgia amongst young people - I'm a 28-year-old male that grew up here and was born and raised here in Georgia. And I think it's a very different way that we view this than older people. I feel like we don't really understand what happened in the '60s, and I think that there's a danger that we may not fully understand what happened and how it happened.

I think it's really important that we - as young people take context of all this and understand what really happened and do our own research and learn about what happened so that we can prevent anything like that from happening again.

CONAN: The question of history, it's an interesting one, Tyler. Ilya Shapiro, would you agree, for example, with Lani Gunier that this was an ideological decision?

SHAPIRO: It depends what you mean by that. I mean it's - there's certainly differences among the justices about how to interpret the Constitution and what the 15th Amendment protections mean and how federalism is meant to operate. But I don't think it's a results-oriented decision or anything like that. You know, we can have a civil disagreement about the law, and I think that's what this is.

CONAN: Civil disagreement about the law, Lani Gunier. Why do you think it's ideological?

GUNIER: Well, I think it's ideological because the Republicans who are represented on the Supreme Court in greater amounts than the Democrats are the ones who are leading the charge to undermine the Voting Rights Act. And in particular, there is a lot of Republican support in the covered jurisdictions so they want to make it possible for those jurisdictions to continue to do things that promote a shared political vision. But the point that I think some of the people who are defending what the court did, the point that they're making misses the point because if you look, for example, in North Carolina where there were about 20 counties that were covered by the Voting Rights Act, and you see that in North Carolina the split in terms of political parties is about even.

So there are about the same number of Democrats as Republicans in the state. But because the Republicans were able to control not only the legislature but the governor, they redistricted in a way that ensured that Republicans would get a disproportionate amount of...

CONAN: Congressional representation.

GUNIER: Congressional - yeah. And...

CONAN: I have to say the Democrats did the same thing in Maryland.

GUNIER: That may be true. But my point is that throughout the South in particular when you think about the people who have statewide power, that is the governors, the justices on the Supreme Court, et cetera, there are very few black or Latino and in some states no black or Latino politicians in any statewide office.

SHAPIRO: That's actually not true. Mississippi has the greatest number of black elected officials.

GUNIER: Statewide, statewide. Name one. Name one.

SHAPIRO: And I'm not sure that Republicans...

GUNIER: Name one.

SHAPIRO: ...will benefit because this might prevent the washout districts, the so-called majority-minority districts, the collusion between black leaders and Republicans in creating these segregated districts.

CONAN: Well, you hear why this is going to be such a contentious issue. More today on ALL THINGS CONSIDERED. This is NPR News.

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