It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity. The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.” We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.
Take Shelby County v. Holder, argued February 27 before the Supreme Court: Is the pre-clearance provision of the Voting Rights Act still constitutional — though Congress found extensive examples of racial discrimination in voting as recently as 2006? One might answer yes, because Congress has the authority to do that under our system. The 2006 extension came after Congress compiled a voluminous record of problems and was passed overwhelmingly by the House and — for the first time — unanimously in the Senate.
Beyond this question of congressional power, however, is a question of belief. If you answer yes, it is because you probably hold three beliefs. First, you believe that race and color are still significant risk factors in the exercise of some constitutional rights — like voting. Second, you believe there’s reliable evidence to support the first belief. And third, you think that laws as written can fix it.
Scalia does not share those beliefs. So last week he offered a different explanation for Congress’s unanimous vote. “I think it is attributable,” Scalia said, “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.”