Listen to the oral argument in the Voting Rights Act case.

Audio here. There's also a summary there of what the case is about, basically whether Congress has the power to continue to require some states, but not others, to get approval from the federal government before they change any election laws. The states are covered based on a formula that looks at how things were in 1972.

I was especially impressed by something Justice Breyer said at 65:42. Transcript (PDF):

If you draw a red line around the States that are in, at least some of those States have a better record than some of the States that are out. So in 1965, well, we have history. We have 200 years or perhaps of slavery. We have 80 years or so of legal segregation. We have had 41 years of this statute. And this statute has helped, a lot. So therefore Congress in 2005 looks back and says don't change horses in the middle of the stream, because we still have a ways to go.

Now the question is, is it rational to do that? And people could differ on that. And one thing to say is, of course this is aimed at States. What do you think the Civil War was about? Of course it was aimed at treating some States differently than others. And at some point that historical and practical sunset/no sunset, renew what worked type of justification runs out. And the question, I think, is has it run out now?

And now you tell me when does it run out? What is the standard for when it runs out? Never? That's something you have heard people worried about. Does it never run out? Or does it run out, but not yet?

Or do we have a clear case where at least it doesn't run out now?

That's a sharp summary to the question and it's fair, though it leans toward upholding what Congress did. I think Breyer framed his question around something Justice Scalia said earlier — which I think is what "you have heard people worried about" refers to. At 50:30 in the audio, Scalia notes that the Court generally leaves "racial questions such as this one... to Congress." But congressional support for reauthorizing the act has increased over the years, even though the need for it has lessened.

[That increased congressional support] is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there's a good reason for it.... It's -- it's a concern that this is not the kind of a question you can leave to Congress.

Scalia is saying the Court needs to act because there is a dysfunction in the political process that keeps Congress from looking rationally at the actual need for the remedy that made so much sense back in 1965. Breyer's response is: Congress is still in the middle of doing what was once badly needed, it's not obvious that the endpoint has been reached, and therefore it's not time yet for the Court to act.