On the face of it, you might think pretty tough.
"Judging by all the early reporting on the first round of Supreme Court arguments about a key section of the Voting Rights Act, that provision may be in real peril. Conservative justices expressed sharp skepticism of the law, with much attention being paid to Antonin Scalia’s description of it as a “perpetuation of racial entitlement.”
However, the hope is Anthony Kennedy though he asked some hostile sounding questions as well:
"Kennedy’s comments were skeptical of the Act, too, but his line of questioning left room for him to uphold the law, according to Myrna Perez, a senior counsel with the Brennan Center, who was at the court today and spoke to me by phone. Kennedy’s main objection to the law, she noted, was that it constitutes “reverse engineering.” He also suggested that times have changed since it was enacted."
"The question is whether Kennedy’s line of questioning pinpointed anything in particular that would justify labeling the law unconstitutional. Proponents are hoping Kennedy will make the call based on very specific criteria: First, whether or not Congress, in passing the law and renewing it in 2006, carefully evaluated whether the conclusions it reached — about the states and localities that require federal “pre-clearance” before changing voting laws — are reasonable. And second, whether the remedy Congress picked (Section 5) was within the proper scope of Congress’ power. When Congress renewed the law in 2006, proponents note that it undertook very careful review to determine whether the evidence still justifies pre-clearance."
Of course, this is not the first time this law has been before the SJC. Yes, we have a conservative learning court but we did the last time the court upheld it. Were similar questions asked last time? My guess is very likely yes. Recall that many rashly concluded that ObamaCare was in trouble after the tough questioning for Obama's solicitor general the first day.
Scalia's questions seem to suggest that he's going in for full blown "social engineering" he seems to be saying that Congress can't handle the job of legislation in this case so the Court must do the legislation for it.
"As he’s aged, he’s tossed aside any pretense or desire to hide the fact that he sees himself as what originalists and advocates of judicial restraint are supposed to be against: namely, an appointed super legislator, contemptuous of Congress and happy to impose his own beliefs by judicial fiat. Hearing him rail about “racial entitlement” sounds more like you’re listening to some sort of talk radio blowhard than a Supreme Court Justice."
He sounds exactly like an aspiring "super legislator"
Roberts question is also absurd-he has a history attacking this law. It's not like the states chosen for this part was whimsical, just that they had the history. The criterion is scientific-those that had anti voting laws on the books in 1964.
Since then other locals like the Bronx here in NY have been added. This hardly suggests that the problem is going away.