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Mr. Payton assisted in the arguments leading to the Supreme Court's 8-to-1 decision upholding Section 5.
Perhaps as a result of this new opening, when an astrologer named Suresh Koushal filed an appeal against the judgment in the Supreme Court, fifteen other parties joined him and the original litigants to support upholding Section 377.
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For Justice Anthony Kennedy in particular, the court's swing voter, this argument may be far more appealing than upholding Sections 4b and 5 based on sweeping claims about historical discrimination, or else striking down that landmark piece of legislation.
In 2000 Souter embarked on a personal crusade to uphold Section 28.
(Mississippi, by the way, signed a brief urging the court to uphold Section 5).
When the United States Court of Appeals for the District of Columbia Circuit rejected Shelby County's challenge and upheld Section 5 last year, the vote was 2 to 1.
In 2009, the Supreme Court voted 8 to 1 to uphold Section 5, but Chief Justice John Roberts Jr. wrote that the section now raises "serious constitutional questions" and "must be justified by current needs".
It was hardly clear, at any rate, that the court's conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula.
But there is reason to hope that he will vote to uphold Section 5, because in cases on constitutional rights where the facts make clear an injustice, he tends to hew less to the simplicity of conservative ideology and to look for more nuanced solutions.
In 2013, another panel of the Supreme Court upheld Section 377. .
While a federal court has upheld Section 702, privacy watchdogs are still challenging the rule's constitutionality.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com