Associate Justice Antonin Scalia is known for outrageous comments both on and off the Supreme Court bench, where he has distinguished himself for 27 years as one of its most extremist justices in a century. But in an oral hearing Wednesday of arguments in the case of Shelby County (Alabama) v. Holder that seems destined to eviscerate the Voting Rights Act of 1965 with a 5-4 ruling, Scalia shocked many of those present with a foul remark rising above his usual perniciousness.
Continuing Section 5 of the act—which requires federal pre-clearance of changes in voting laws in all of nine states and parts of seven others—would be, Scalia said, the "perpetuation of racial entitlement." He added that the act had only been renewed by a unanimous Senate in 2006 because there was no political advantage to be had from voting against it:“I don’t think there is anything to gain by any senator by voting against this act. This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”
You don't have to engage in linguistic acrobatics to understand from his choice of "perpetuation" how Scalia has apparently always felt about a law that helped break the back of Jim Crow. His was not some innocent flub that just popped out. In the past he's backed states' rights by referencing post-Civil War racial exclusion laws. He's noted that he would have dissented had he been on the Supreme Court when it ruled unanimously for desegregation in Brown v. Board of Education. And then there was his dissent with the majority in a case just last year, Arizona v. United States, in which he argued against federal supremacy in immigration law:
"[T]he States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks."
That's right, he favored Arizona's having the right to control immigration based on what post-Civil War states of the former Confederacy did to restrict the movement of millions of blacks who had been held as slaves just a few years previously. Quite the precedent.
The "racial entitlement" remark is thus of a piece with his previous views. It can be prettified with witticisms and all sorts of intellectual twisting and turning, at which Scalia is quite adept. That doesn't make it less despicable. Justice Sonia Sotomayor kept her cool but responded.“Do you think Section 5 was voted for because it was a racial entitlement?” She added,“Do you think racial discrimination has ended?”
That, of course, is the key issue for civil rights activists, liberal jurists and the Department of Justice, which just this year used Section 5 to force changes in a strict voter-ID law proposed by South Carolina and to block a purge of voters from the rolls in Florida. A federal court also used Section 5 to squelch a discriminatory redistricting plan and a strict voter-ID law in Texas. Since 1982, some 750 proposed laws and other voting changes have been knocked down under Section 5.
That hasn't been done because of "racial entitlement," but rather because of racism.