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Scalia: Voting Rights Act Is ‘Perpetuation Of Racial Entitlement’

February 28th, 2013 · No Comments

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Think Progress Feb 27, 2013
By Nicole Flatow and Ian Millhiser

WASHINGTON, DC — There were audible gasps in the Supreme Court’s lawyers’
lounge, where audio of the oral argument is pumped in for members of the
Supreme Court bar, when Justice Antonin Scalia offered his assessment of a
key provision of the Voting Rights Act. He called it a “perpetuation of
racial entitlement.”

The comment came as part of a larger riff on a comment Scalia made the last
time the landmark voting law was before the justices. Noting the fact that
the Voting Rights Act reauthorization passed 98-0 when it was before the
Senate in 2006, Scalia claimed four years ago that this unopposed vote
actually undermines the law: “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

That was an unusual comment when it was made, but Scalia’s expansion on it
today raises concerns that his suspicion of the Act is rooted much more in
racial resentment than in a general distrust of unanimous votes. Scalia
noted when the Voting Rights Act was first enacted in 1965, it passed over
19 dissenters.
In subsequent reauthorizations, the number of dissenters diminished, until
it passed the Senate without dissent seven years ago. Scalia’s comments
suggested that this occurred, not because of a growing national consensus
that racial disenfranchisement is unacceptable, but because lawmakers are
too afraid to be tarred as racists. His inflammatory claim that the Voting
Rights Act is a “perpetuation of racial entitlement” came close to the end
of a long statement on why he found a landmark law preventing race
discrimination in voting to be suspicious.

It should be noted that even one of Scalia’s fellow justices felt the need
to call out his remark. Justice Sotomayor asked the attorney challenging
the Voting Right Act whether he thought voting rights are a racial
entitlement as soon as he took the podium for rebuttal.

A transcript of the oral argument will be available soon, and we will post
Scalia’s quote in its full context. We will also post audio of Scalia’s
words when they become available.


The transcript of the oral
now available. Scalia’s full statement is copied below the fold:

JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But
that’s — that’s a problem that I have. This Court doesn’t like to get
involved in — in racial questions such as this one. It’s something that can
be left — left to Congress.

The problem here, however, is suggested by the comment I made earlier, that
the initial enactment of this legislation in a — in a time when the need
for it was so much more abundantly clear was — in the Senate, there — it
was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits
against it in the Senate. Then it was reenacted for 7 years. Single digits
against it. Then enacted for 25 years, 8 Senate votes against it. *And this
last enactment, not a single vote in the Senate against it. And the House
is pretty much the same. Now, I don’t think that’s attributable to the fact
that it is so much clearer now that we need this. 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. 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.

Even the name of it is wonderful: The Voting Rights Act. Who is going to
vote against that in the future?

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