[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] Wednesday in Shelby County v Holder [transcript, PDF; JURIST report] to determine whether Congress exceeded its authority when it renewed Section 5 of the Voting Rights Act of 1965 [Cornell LII backgrounder]. Section 5 requires jurisdictions with a history of preventing minority groups from voting to receive preclearance from the US Department of Justice or a three-judge panel of the US District Court for the District of Columbia [official websites] before making any changes to their voting laws. Shelby County argued that “the South has changed” and that the preclearance requirements were not justified by the “antiquated” formula for determining which jurisdictions are covered by Section 5, the “extraordinary” federalism and the financial burdens of preclearance. Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg repeatedly questioned whether, even if the standard for determining what jurisdictions fell under Section 5 was improper, Shelby County had suffered any harm. Kagan argued that Alabama would be captured under any formulation of the standard because it was either worst or second worst, depending on the metric, in terms of its voting record. Sotomayor described Shelby county as “a county whose record is the epitome of what caused the passage of this law to start with.” Justice Antonin Scalia expressed concern that the Voting Rights Act would be renewed into perpetuity because of political pressure and argued that the government had not adequately demonstrated a justification for treating these states differently. Justice Anthony Kennedy appeared to be the swing vote [SCOTUSblog report] leaning towards invalidating the law and questioned whether the jurisdictions could effectively move forward from the past unless they could act as sovereigns, rather than under the “trusteeship” of the federal government.

The Supreme Court also heard arguments in American Express Co. v. Italian Colors Restaurant [transcript, PDF] to determine whether the Federal Arbitration Act (FAA) [text] allows courts to nullify arbitration agreements if the agreements do not permit class arbitration of a federal law claim. The plaintiffs in the case are several retail businesses bringing a Sherman Antitrust Act [Cornell LII backgrounder] claim after being forced to accept American Express credit cards and debit cards, with their associated higher fees, by their agreement to accept American Express charge cards. American Express argues that the enforceability of an arbitration agreement cannot be conditioned upon the availability of class certification. American Express further argued that “[t]he whole point of arbitration… is to expand the scope of claims, small consumer claims, that can be brought in an efficient and cost-effective manner” and that consumers could even share in the costs of experts. Kagan questioned whether preventing class action suits effectively foreclosed potential claimants from pursuing their claims because the amount of their individual damages was so small compared to the costs of bring even an arbitration suit that no one would actually bring a claim. However, Justice Stephen Breyer questioned whether the expert reports required for arbitration really needed to be very expensive. The plaintiffs argued that American Express was using its market power to impose contractual terms that effectively made the arbitration of an antitrust claim impossible.