From the time the landmark Voting Rights Act of 1965 became law in 1965, critics have challenged it on constitutional grounds. Critics complained then that the Act was beyond the powers of Congress, an illegitimate affront to states’ rights and principles of federalism, as well as arbitrary in its coverage. Months after its passage, the Supreme Court upheld the constitutionality Act; only Justice Black accepted these arguments as applied to the application of the Act to the southern states.
The question for Kagan, then, is this: What is her vision of American society in terms of race and gender? Without putting too fine a point on it, this is precisely the question she will have to answer when the Court considers the constitutionality of the VRA.