Justice Antonin Scalia, during oral arguments at the Supreme Court on Wednesday, said that the Court had to rescue Congress from the trap of being afraid to vote against a “racial entitlement”—the “entitlement” in question being 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?”) Scalia said that not alone but, it appears, with four other votes for overturning a key part of the act: Section Five, which relies on a combination of history and recent bad behavior to designate certain states and jurisdictions as having to get “pre-clearance” from the Department of Justice or from a federal court before they, say, abruptly change voting hours or redraw districts or change their voter-I.D. requirements. Most of them are in the South, but not all of them are. The Court’s conservatives seem to think this is terribly unfair. “Is it the government’s submission that the citizens in the South are more racist than citizens in the North?” Chief Justice John Roberts asked. “But if — if Alabama wants to have monuments to the heroes of the Civil Rights Movement,” Justice Anthony Kennedy, the swing vote, asked, would it be “better off doing that if it’s an own independent sovereign or if it’s under the trusteeship of the United States Government?” Is the idea that statues are only going up now because people are looking, or that the Voting Rights Act is nothing but a monument?
But Scalia’s argument—and he was as much presenting a case as asking questions—was particularly striking. The Voting Rights Act was passed in 1965 as a follow-up to the Civil Rights Act of 1964, a series of bills enacted after a legislative struggle and the murder of civil-rights workers who tried to register voters. It passed the Senate 77–19, and the House 333–85. Some of its provisions, though, including Section Five, would expire unless renewed, as they have been several times—most recently in 2006, after a debate and discussion of possible amendments. It passed the Senate 98–0, and the House 390–33. Scalia thought that the widening margin spoke to a sorry situation. “But that’s—that’s a problem that I have,” he said, after the Solicitor General Donald Verrilli said that Congress had made a judgment that voting rights still needed to be protected. “This last enactment, not a single vote in the Senate against it. And the House is pretty much the same.” Scalia continued:
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.
Scalia is saying, in effect, that the Voting Rights Act gave a gift—a “racial entitlement”—to black people, and the result has been that “the normal political processes” don’t work. What is “normal,” in this view? Scalia goes on:
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 reënacted 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.
What does Scalia mean when he says that “even the Virginia Senators” are under the constraint of knowing that “the State government is not their government”? The notion that more members of Congress now than in 1965 might support the Voting Rights Act because it does good (and still necessary) work does not seem to have occurred to him. Is the job of the Court to be Congress’s mind-reading, minority-sidelining alter ego?