For those of you following the recent Supreme Court ruling on the Voting Rights Act of 1965 (Supreme Court sidesteps question of Voting Rights Act constitutionality) you will be interested to read this exchange in yesterday's hearing between Sen. Al Franken and Ms. Sotomayor...

FRANKEN: I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he -- he didn't get out his pocket Constitution, as I -- I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens' right to vote...

And it said, Section 1, Amendment number 15, section one, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude." Section two -- this one's important. "The Congress shall have power to enforce this article by appropriate legislation," -- the Congress.

Well, Congress used that power to -- the power vested in them under Section two -- when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.

Congress has reauthorized this four times as recently as -- the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it. So now it's 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn't necessary any more. That's what he said.

Now, when I read the 15th Amendment, it doesn't say -- it doesn't contain any limits on Congress' power. It just says that we have it. It doesn't say if necessary the Congress shall have power to enforce this article. It just says that we have the power.

So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?

SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.

That very question, given the decision and the fact that it left that issue open is a very clear indication that that's a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view -- agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.

FRANKEN: So that means you're not going to tell us?

(LAUGHTER)

I didn't mean to finish your sentence.

SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed -- issues of changes in the Voting Rights Act should be left to Congress in the first instance.

My jurisprudence shows the degree to which I give deference to Congress' findings whether in a particular situation that compel or doesn't or leads to a particular result is not something that I can opine on because, particularly, the issue you're addressing right now is likely to be considered by the courts.

The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.

FRANKEN: OK. It's fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it's up to Congress.

SOTOMAYOR: Well...

FRANKEN: It feels like this is very explicitly up to Congress.

SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case. FRANKEN: OK. Now, voting to overturn federal legislation, to me at least, seems to be one definition of what people understand as judicial activism. But I want to talk about some cases that I've seen that I think showed judicial activism functioning on a more pernicious level.