The Supreme Court’s most colorful associate justice, Antonin Scalia, raised eyebrows recently with his soliloquy on “racial entitlements,” his terminology for the protections conferred by such antiquities as the Voting Rights Act (from less than 50 years ago).
Section Five of the Act requires states and municipalities with a history of discrimination against racial or language minorities in the area of voting access, to clear election-related changes with the justice department. According to Ohio Congresswoman Marcia Fudge, who was in the courtroom for the oral arguments over Shelby County v. Holder, the case that could spell the end of Section Five, there was a collective intake of breath when Scalia uttered the antebellum-sounding phrase. Not so, Clarence Thomas, the silent black justice with John Lewis roots and John Calhoun sympathies, who, according to Rep. Fudge, simply leaned back in his chair, eyes meeting the ceiling.
This actually wasn’t the first time Scalia has opined on what he sees as the nasty confluence of race and “entitlement.” He used the same phrase in (year) to describe what he called America’s emerging sense of a “debtor race” and a “creditor race,” whereby long after the actual victims of racial discrimination were somehow compensated (wait, people were compensated for 400 years of slavery, Jim Crow and racial terror? Who knew!) — even after they were compensated, their progeny must remain shackled to a system of unfair perpetual repayment.
It’s a loftier, black-robed version of such Tea Party mythology as the so-called “Obama phone.” Because Tony Scalia is, of course, a much loftier, more grandiose version of a Tea Parter.
Scalia, our very own Founding Fathers whisperer and self-styled originalist, has stated that Judges should not substitute their own judgment on what would “bring about a more perfect union”, for a plain reading of the “dead” constitution. Because the Founders’ intent is so clear, we need a Supreme Court and a panoply of lower courts to interpret it… or something …
Scalia has apparently created an exception to his own rule, which says that Justices — well, the conservative ones, anyway — should use their power to impose their vision of a more perfect union when congress refuses to stand up to the politically correct whiners and racial debt collectors who can’t tolerate a little seven-hour wait, or a poll-worker administered background check in order to cast a ballot.
Here’s Scalia’s entire quote in context:
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. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.
You see own that works? Because Congress is to scared to stop making white southerners pay for their forefathers’ crimes, Tony Scalia must do the job done for them. If a liberal justice were to put forward such a statement about the role of the court, essentially substituting its judgment for that of congress, a conservative like Scalia would call that judicial activism.
In fact, the court has, many times throughout our history, stepped in to overturn duly enacted laws that don’t comport with federal constitutional rights – like the right to equal protection under law. That was the basis by which previous supreme courts overturned state-based segregation and vote-impeding laws starting in the 1950s. This is the first time in modern history that a Justice has argued in favor of usurping the federal legislature’s authority in order to grant states the right to limit access to the voting booth.
Scalia appeared to be bolstered in his crusade to rid the world of race-based remedies by Chief Justice John Roberts, who appeared to have declared an official end to racial discrimination in America when he inquired, as only a patrician who’s always nice to his black chauffeur or the stewards in the John Marshall Dining Room can be, whether the lawyers arguing in favor of Section Five are implying that people in the south are more racist than people in the north. Perhaps Justice Roberts’ clerks didn’t brief him on the fact that Section Five is also applied to counties in Alaska and New York. Maybe it’s southern New York.
And the court staffers probably should have also briefed Roberts prior to his erroneous use of Census data to compare black voting patterns in Massachusetts and Mississippi. I’m not a lawyer, but I’m pretty sure the fact that some minorities are able to vote somewhere is not proof that no minorities are subjected to race-based voter discrimination anywhere.
A couple of weeks ago, I moderated a panel at BET’s “Leading Women Defined” conference — or as Scalia might put it: “a gaggle of black women who think they are entitled to stay at the Ritz Carlton in Washington D.C.” The panel included Rep. Fudge and Advancement Project co-director Judith Brown Dianis, who has dedicated her career to the thoroughly anti-Scalian notion that people are entitled to vote without impediments, 7-hour waits or an arbitrarily compressed timeframe (in the north as well as the south!) In the audience for the panel, was Sherrilyn Ifill, presint and chief counsel for the NAACP Legal Defense and Education Fund, which presented the pro-Section Five case before the court’s skeptical conservatives, it’s resident Libertarian Anthony (?) Kennedy and the four women and liberals on the court, who somehow presume their right to be there.
Ifill told the room about the case of Kilmichael, Mississippi, where a handful of white families had totally controlled the local government for generations. As the town’s demographics changed, with more black and brown people moving in, the town’s leaders hit on a brilliant but devious strategy: they called off the elect Soon, the Justice Department stepped in, and armed with Section Five of the Voting Rights Act, required the town to resume the democratic process, resulting in NAME’s first black MAYOR.? That was In YEAR.
And let’s consider Shelby County itself.
Ifill recalled, as she explained to MSNBC’s Andrea Mitchell recently, how the city of Calera, in Shelby County, the jurisdiction “decided to reduce the population of the only majority black district from 70 percent, to 29 percent,” a clear case of attempted vote dilution.
In other words, the only thing it’s residents felt “entitled” to was for their race not to be a factor in policymaking that had the express purpose of diluting the power of their growing numbers.
That’s what black and brown and young Americans are arguing nationwide, as Republicans increasingly turn to electoral innovations, from voter ID laws to slashing early voting days to the kinds of massive voter purges Florida has undertaken in repeated election cycles, to stem the demographic tide that’s increasingly flowing against them.
Scalia’s view clearly is that leaders of his preferred political party are “entitled” to do whatever they must in order to hold onto power, given that minorities continue to insist that they are “entitled” to vote for Democrats. After all, Justice Scalia has never been shy about using the power of his office to impose his preferred outcome in an election. Just ask George W. Bush. Why shouldn’t Shelby County, or Ohio Secretary of State John Husted, or the GOP-led Florida legislature, or the Pennsylvania and Michigan and Virginia Republicans toying with the idea of gerrymandering the allocation of Electoral College votes, be entitled to do the same?