of course subject to the review of this court under the review of northwest austin. i do say with all due respect that i think it would be extraordinary to look behind the judgment of congress as expressed in the statutory findings and evaluate the judgment of congress on the basis of that mode of analysis. >> i am not talking about dismissing it. i am talking about looking at it to see if it makes any sense. >> but i do think the deference --katzenbach said much deference. that is appropriate because of the nature of power conferred here and because of the superior institutional competence of congress to make those decisions. these are predictive judgments about human behavior. something the people in congress know most about, which is voting and the political process. i would also say that i understand your point about entrenchment, but certainly with respect to the senate you just cannot say that it is in everybody's interest. the enforcement of section five lome get easier for some senators to win, and harder for some senators to win -- will make it easier for so

everyone acknowledges, petitioner, its amici, this court in northwest austin, that the voting rights act made a huge difference in transforming the culture of blatantly racist vote suppression that characterized parts of this country for a century. section 5 preclearance was the principal engine of that progress. and it has always been true that only a tiny fraction of submissions under section 5 result in objections. so that progress under section 5 that follows from that has been as a result of the deterrence and the constraint section 5 imposes on states and subjurisdictions and not on the actual enforcement by means of objection. now, when congress faced the question whether to reauthorize section 5 in 2006, it had to decide whether -- whether it could be confident that the attitudes and behaviors in covered jurisdictions had changed enough that that very effective constraint and deterrence could be confidently removed. and congress had, as judge kagan identified earlier, a very substantial record of continuing need before it when it -- >> can i ask you just a little bit about th

in northwest austin, this court addressed the formula, and the circumstances there were a very small jurisdiction, as the court said, approaching a very big question. it did the same in rome, the city of rome. it did the same in katzenbach. the -- so the formula itself is the reason why shelby county encounters the burdens, and it is the reason why the court needs to address it. >> interestingly enough, in katzenbach the court didn't do what you're asking us to do, which is to look at the record of all the other states or all of the other counties. it basically concentrated on the record of the two litigants in the case, and from that extrapolate -- extrapolated more broadly. >> i don't think that -- >> you're asking us to do something, which is to ignore your record and look at everybody else's. >> i don't think that's a fair reading of katzenbach. in katzenbach, what the court did was examined whether the -- the formula was rational in practice and theory. and what the court said is, while we don't have evidence on every jurisdiction that's reached by the formula, that by devising

of course subject to review under the standard of northwest austin, that's the first point.the second point i say with all due respect, i think it would be extraordinary to the behind congress as expressed in the statutory findings and evaluate congress on the basis of that mode of analysis -- >> i'm not talking about dismissing it. i'm talking about looking to see whether it makes sense. >> i do think the deference congress does the city, katzenbach says that different is appropriate because of the nature conferred here and the superior institutional confidence of congress to make these judgments. these are judgments that assess social conditions. judgments about human behavior. predictive judgments of human behavior and something that people in congress know the most about, which is voting on the political process. i understand your point about entrenchment, but with respect to the senate, you just can't say it's in everybody's interest to section bible make it easier for some of the senators to win. it's going to make it harder. >> to think the preclearance device could b

. >> and the last time it was the before the court was a couple of years ago in the northwest austincase. and the supreme court sounded from the argument, i think i was there. they were going toss out section 5. at the last minute the last day of the term they rendered the decision in which they ducked the issue, and the chief justice wrote the opinion ducking this very question, and found a way around it by construing the statute in a way that was a bit of a stretch. but he ducked the question. the question is why was it ducked then when it sounded so much like they were going to face up to it as a result of what you heard during the oral argument? well, maybe there was one vote that slipped away or something like that. you never know about these things. in the chief justice's opinion he talks about the fundamental principle of equal sovereignty among the states, and that may or may not be something that comes back with respect to this, but it is underlying question. of course states get treated differently under the commerce clause. it's try here, -- dry here, wet here, there's all

in fact, if anything, i think people were a little less hostile than maybe they were in the northwest austinase once some of the same issues came up. i think what was really interesting right out of the gate were some questions by justice sotomayor how a plaintiff in the county in state of alabama can be a place with a straight face to come before the court and say we no longer need the voting rights act in a place like alabama with the record. >> what i can say, sort of lost in the discussion of the case. so shelby county, alabama, didn't wake up one fine sunday morning and say let's challenge the voting rights act. >> right, yes. >> it was recruited by one person project unfair representation. that found lots of right wing foundation money to go out and accept the court's invitation from four years ago in the northwest austin case to bring us a better case. because this is the playing out of what i've called the roberts project. last year in the health care case, i predicted that the chief justice would ultimately vote to uphold the affordable care act. why? various reasons. but basically,

. >> and the last time it was before the court wishes a couple of years ago, in the northwest austin case, don't have that right? of the supreme court sounded from the argument, i think i was there, like you're going to toss out section five. and then at the last minute, the last day of the term they rendered his decision, or close to the lastly, in which they dubbed the issue. the chief justice wrote the opinion, ducking come of this very question and found a way around it by construing the statute in a way that was a bit of a stretch. but he ducked that question. why was it docked then when it sounds so much like they were going to face up to it as a result of what you are during the oral argument? maybe does one put the slip to wear something like that. you never know about these things. but in the chief justice's opinion, he talks about the fundamental principle of people sovereignty among the states. and that may or may not be something that comes back with respect to this, but it is the underlying question of, of course states get treated different under the commerce clause bec

northwest. only one day and one night of heavy rain. the rest of the time just showers. >> good reason for those tech folks to fly south to south by southwest in austin. >>> how low gas prices are heading and why businesses are keeping their profits offshore. >>> plus, two years after one of the modern world's most devastating natural disasters. how japan marks the moment that quake and tsunami changed their world forever. "early today" is back in two. >>> welcome back. stories making news this morning, a family member of seven people killed in a kentucky house fire says he attempted a rescue but was too late. two adults and five children under the age of 3 were killed when their house went up in flames. the cause is still being investigated. >>> a main suspect in the gang rape of a woman in new delhi, india, has committed suicide in his jail cell. the suspect was accused of driving the bus where a 23-year-old student was raped and fatally assaulted by a group of six men last year. >>> japan marks two years since the devastating earthquake and tsunami. memorial services are being held in tokyo and towns along the northeastern coast where the pacific