Scalia, Top Democratic Plant?: Speaking for myself, it’s hard for me to read the sort of stuff Justice Scalia says these days without seeing red. As he’s aged, he’s tossed aside any pretense or desire to hide the fact that he sees himself as what originalists and advocates of judicial restraint are supposed to be against: namely, an appointed super legislator…. Hearing him rail about “racial entitlement” sounds more like you’re listening to some sort of talk radio blowhard than a Supreme Court Justice.
But who is he (and his fellow conservatives on the Court) helping at this point?… [T]he Republican drive to disenfranchise minority voters in 2012 backfired spectacularly… you piss off and activate more people than you gain by playing to racial animus, hostility to immigrants and attacks on voting rights. Yet the Supreme Court is still stuck in the 80s and 90s era of the judicial politics of racial grievance…. The Court now seems dead set on overturning Section 5 of the Voting Rights Act. After that we’ll have cases on marriage equality, voter ID, affirmative action. The judicial calendar is stuck in a feedback loop.
I don’t want to underestimate the real world damage that will be done by bad outcomes of these cases. It’s real. But the political valence of all these cases, the politics they generate, seems certain to keep the public mind focused on the politics of exclusion they embody and the political coalition that put them on the bench. And that’s real too.
Scalia: Not Just Offensive, Ludicrously Overrated: As Mark Tushnet has pointed out, Scalia is erroneously considered an intellectual standout on the Court because of his unusual tendency to write and speak in prose more generally seen on political shoutfests and op-eds. Very frequently, these glib, attention-grabbing phrases are used to advance arguments that are essentially self-refuting…. Scalia’s campaign in two oral arguments to argue that the strong bipartsian support for the Voting Rights Act is more reason for the Supreme Court to step in may be the best example of why Scalia is so egregiously overrated. To expand on my point a little, let’s return to what he said at oral argument in 2009:
Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”…
[W]hat’s more striking is that the argument is transparently idiotic. Nobody thinks that verdicts of a unanimous jury are less reliable than the verdicts of a mere majority…. [A] unanimous verdict isn’t seen as not constituting a guilty verdict…. And Scalia’s attempt to argue that we should be suspicious of legislative consensus is problematic for an important reason. The way the court’s reactionary wing treated the 15th Amendment yesterday stands the explicit purpose of the 15th Amendment on its head. You would think, listening to Scalia and his fellow conservatives, that Congress was being subjected to strict scrutiny here, as if the core purpose of the 15th Amendment was to guarantee the equal treatment of states rather than the equal treatment of individuals…. To try to turn the 15th Amendment into a states’ rights manifesto in which the “federalism interest” trumps the Congress’s ability to protect the right to vote is as perverse as asserting that a jury system would function better if it ruled out unanimous guilty verdicts…. To cleanse the palate, let me finish with a couple of voices who actually understand the purpose of the Civil War amendments. First, let’s turn to Justice Sotomayor:
Meanwhile, Sotomayor, for whom this seems very, very personal, made an argument from history that discrimination is an infinitely mutable thing and that, as soon as you find a remedy for one form of it, human ingenuity will devise three new ones. And she was also sharply critical of the device by which finagling the vote had been divided, for the purposes of argument, into “first generation” and “second-generation” discrimination. “I don’t know if I would call any discrimination secondary or primary,” she said. “Discrimination is discrimination.”…
And, to conclude, genuine hero John Lewis:
Rep. John Lewis attacked Supreme Court Justice Antonin Scalia on Wednesday…. “It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement,” he continued. “We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”
Balkinization: The Endless Perpetuation of a Racial Entitlement Not to be Discriminated Against: When Will it Ever End?: Section Five of the Voting Rights Act singles out some jurisdictions with long histories of discrimination for special scrutiny; it requires them to submit all changes to their voting laws to the DOJ or a court. From the skeptical-sounding Justices, I hear three arguments for why the reauthorization of Section Five might fail….
(1) The South has changed. As Burt Rein, counsel for Shelby County, put it: “the problem to which the Voting Rights Act was addressed is solved.” (tr. pg. 65)
(2) Today, sure there may be race discrimination in voting, but it’s equally bad in the North and the South. Massachusetts is just as bad as Mississippi, if not worse. (see CJ Roberts on p.32)
(3) This one is the most novel: Section Five of the VRA amounts to a “racial entitlement,” and the Court must strike it down. This one is Justice Scalia’s particular contribution…. This argument represents a clever, indeed somewhat mind-bending, twist in the long trajectory of process theory arguments and representation-reinforcing judicial review….
The third mines a special vein of political and constitutional concerns that link Shelby County v. Holder with Fisher v. University of Texas (the other high court case this term instigated by Ed Blum and the Project on Fair Representation). For Blum, and for Justice Scalia, these cases are in part about the need for courts to use the clear command of constitutional law to override suspect legislative judgments (of Congress, in reauthorizing the VRA) and educational judgments (of the University of Texas)…. This last argument presses toward a place I doubt most of the Justices in the conservative majority want to go. But they don’t need to. The project of anti-anti-discrimination includes a multitude of helpful tools…. I’d bet on (2), with a minor assist from (1)….
Argument 3: Justice Scalia’s Distinctive Process Theory: Justice Scalia’s argument was the most original, and he was obviously itching to get it on the table…. Justice Scalia instead erects a straw man, imagining the same Congress looking out at the state of race discrimination in voting at two different times and deciding that “the situation was even clearer and the violations even more evident” (p.16) in 2006 than in 1964…. In any event, having knocked down his straw man, Justice Scalia proceeds to argue as follows:
I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. (p. 47).
That statement drew gasps in the courtroom. A student of mine who was at the oral argument says “all breathing stopped.” And this was not a place that Burt Rein, counsel for Shelby County, was willing to go, when Justice Sotomayor pressed him on rebuttal about whether he viewed the VRA as a “racial entitlement.” For Justice Scalia, though, this is pure process theory—Carolene Products through the looking glass. “[T]his is not the kind of a question,” he argued, that “you can leave to Congress.”
So why, exactly, can Congress not be trusted to calibrate the burdens of the VRA?…. [T]here’s something deeper here than a complaint that elected representatives are insufficiently concerned with federalism and the protection of the dignity of states, because they are too responsive to the people. The complaint is really that the political process itself—and indeed, the American people—have been corrupted by an ideology with which Justice Scalia strongly disagrees, an ideology in which the Voting Rights Act is sacrosanct…. What is different about today’s oral argument is that Justice Scalia appears to be taking this basic framework—a claim that the government was motivated not by any real desire to undo discrimination, but instead by a politics of “racial entitlement”—and applying this framework not to Richmond or New Haven but to Congress. We are supposed to believe, on Justice Scalia’s view, that the entire Senate is so cowed by some force (the stifling tide of political correctness? The desperate desire to avoid appearing racist? Or perhaps even worse, an actual ideology they all believe in, which holds that race discrimination is a very widespread problem?) that the Senate is incapable of discharging its basic constitutional responsibilities. And so courts must step in.
I call this Carolene Products through the looking glass because it’s a fun-house inversion of Footnote Four. Let us note that until this month, the Senate has never, in its history, had two black Senators serving at once. Yet we are supposed to believe that black people—the quintessential discrete and insular minority for purposes of equal protection scrutiny—are so powerful, so overwhelmingly powerful in our politics, that no Senator can stand in the way of their “racial entitlements,” and thus courts must step in. This is an amazingly conspiratorial view of our politics. It sounds like John Hart Ely as told by Glenn Beck….
I think the Voting Rights Act—not the specific procedural mechanism of Section Five, but the VRA as a whole—is part of the American firmament. Americans generally agree that minority voters have a right, or perhaps we should say a “racial entitlement,” not to be discriminated against. Protecting that entitlement requires strong procedural protections—if not Section Five as it stands today, than some other different but similarly robust measures, to which Justice Scalia will also likely object on one ground or another.