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Symbolism, in different moods, on Capitol Hill

February 27, 2013 by Lyle Denniston


Debo Patrick Adegbile was born some 12 years after Rosa Parks refused to move to the back of the bus in Montgomery, Alabama. That incident occurred in 1955. Late Wednesday morning, 46-year-old Adegbile was moving to take his place at the podium in the Supreme Court chamber in Washington at the very moment that President Barack Obama and the leaders of Congress were unveiling the Rosa Parks memorial statue in the Capitol, across the street--a little more than 100 years after her birth.

Rosa Parks with Dr. King
Rosa Parks with Dr. King.

It was poignant symbolism of the kind that often unfolds in the high councils of Washington. But the celebration on the Capitol side of the street was markedly more upbeat than the somber mood that Adegbile confronted inside the crowded chamber of the Supreme Court.

Adegbile is an African-American, as is the president, and as was Rosa Parks, one of the heroines of the civil rights movement. The young lawyer is now the senior staff attorney of the NAACP Legal Defense Fund, and it was his task on Wednesday to urge the Supreme Court not to strike down the federal law that everyone--even its current critics--agree was America’s most successful civil rights law: the Civil Rights Act of 1965. In extending that law for 25 years in 2006, Congress gave it this title: the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act.

“Mr. Chief Justice, and may it please the Court,” Adegbile began. He would continue for 15 minutes, fielding questions from the bench, including some hard ones from Justice Antonin Scalia. Perhaps fortunately for Adegbile, he was not at the podium when Justice Scalia had belittled civil rights legislation by calling it “racial entitlements” that are passed by large majorities in Congress because the lawmakers are politically wary of voting against them.

Once before, the Supreme Court had considered striking down the key sections of the re-enacted Voting Rights Act, but stopped short of doing so. That was in 2009. At that time, the court did attempt to send a message to Congress that the law was vulnerable constitutionally, if Congress did not modernize its enforcement formula to reflect the fact that “the South has changed.”

Since then, the states and some of the local governments that have to obey the law’s toughest demands (those are restricted to those jurisdictions that had the worst records in racial discrimination in voting in 1972) have intensified their constitutional attack on it, since Congress did not react at all to the court’s message of four years ago.

Adegbile, alongside the federal government’s top courtroom advocate, Solicitor General Donald B. Verrilli, Jr., sought to persuade the justices on Wednesday that the law is still needed, and it is still needed mainly in the same states that have been covered since the law’s first enactment.

It was clear, though, that at least four--and probably five--of the justices retained the deep doubts about the law’s constitutionality that they had expressed at a hearing four years ago. In addition to Scalia, they were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Anthony M. Kennedy (and, probably, Justice Clarence Thomas, since he has openly contended that the law was invalid, although he remained silent Wednesday).

Justice Kennedy did give some passing hints that, in the final reckoning, he might not be prepared to strike down the law in its entirety, suggesting that it may be the only effective legal weapon the government has to deal with racial discrimination in voting, where it continues to exist.

The law in its current form clearly had the support of Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor (Kagan and Sotomayor were not yet on the court when the law’s validity was last explored). Justice Stephen G. Breyer expressed some skepticism about the coverage formula for the law, but seemed on the whole to want the law to be kept on the books.

Just as the prospect of a 5-4 split, with the majority against the law, was beginning to take at least preliminary form as the court hearing wound down, President Obama across the street was in the midst of his remarks in Statuary Hall. Rosa Parks is the first black woman to have a statue in that memorial theater.

“Our minds fasten on that single moment on the bus,” the president commented. “Ms. Parks alone in that seat, clutching her purse, staring out a window, waiting to be arrested. That moment tells us something about how change happens or doesn’t happen, the choices we make, or don’t make. ... In a single moment, with the simplest of gestures, she helped change America--and change the world.”

He was talking about an incident in Alabama. And Alabama was also on the Supreme Court’s mind, in a case from that state’s Shelby County. The timing very likely was a coincidence, but symbolism often happens that way.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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