I really don't see it.
Lets take up the arguments (or "dark signs") one at a time:
(1) First, on the facts --
- the conditions that justified section 5 in the past "have changed"
- "blatant discriminatory evasions of federal decrees are rare,"
- "past success alone . . . is not adequate justification to retain the preclearance requirements," and
- "the Act imposes current burdens and must be justified by current needs."
(2) Second, on the states and the rationality of the coverage formula --
- the Act is "a departure from the fundamental principle of equal state sovereignty [which] requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets."
- The "evidence in the record did not address 'systematic differences between the covered and noncovered'" jurisdictions.
For example, critics and supporters alike complained during the hearings about the exclusion of Texas from coverage. Texas, of course, is the setting for the white primary cases and White v. Regester. Could a formula that fails to include Texas be non-arbitrary? Yes, according to 8 justices in Katzenbach. What's new?
(3) Third, the federalism point --
- The Act imposes "substantial federalism costs"
- These special provisions of the Act "raise serious constitutional questions under either test."
In essence, nothing has changed. In 1980, the Burger and Blackmun (and Stevens, I suppose) held the fate of the Act in their hands. In 1999, the distinction passed to Justice O'Connor. It is now up to Justice Kennedy. And nothing that the liberal justices agreed to, and nothing the Chief Justice wrote or didn't write, is likely to have any bearing on that future vote.
I still cannot help but wonder: if Kennedy was ready to strike the special provisions of the Act, why not get it over with?