A cross-post of Elizabeth Wydra's post-argument commentary for SCOTUS Blog.
Predictions based on oral argument are a risky business, but after this morning it is fairly safe to say that the outcome of Shelby County will hinge on how the Justices answer the question Justice Elena Kagan asked toward the end of argument: who gets to decide when the problem of racial discrimination in voting is solved? Because I think most Americans would recognize the reality that voting discrimination is still a problem, I would rephrase slightly: who gets to decide how best to go about solving the problem of voting discrimination? As Solicitor General Don Verrilli repeatedly emphasized this morning, the Constitution expressly grants Congress the power to enforce the constitutional guarantee of the right to vote free from racial discrimination. Not the courts. Not Shelby County, Alabama, of all places. Not even Justice Kennedy.