White robe, black robe: What was Justice Scalia saying to us about voting rights?

March 3, 2013 1:55 PM

Last week's SCOTUS hearing on the Voting Rights Act provided us with yet another reminder about an important factor to consider in voting for president: the quality of Supreme Court justices our top office holder is likely to appoint.


Presidents, after all, max out after two four-year terms, while a scourge on the court is the gift that keeps on giving.


After his performance last week, is there any doubt Antonin Scalia is no friend to people of color (with the possible exception of Clarence Thomas)? 


Hearings don't always indicate how a vote might go. But on the issue of the preservation of Section 5--a key provision of the Voting Rights Act that requires certain states to seek federal approval of voting changes--Scalia's stance seemed so clear his robe practically lost color.


For most of the hearing, it was Obama appointees Sotomayor and Kagan, along with Clinton appointee Breyer, trying to understand Scalia's objections to the Voting Rights Act.


You would think that anything to help ensure a citizen's right to vote would be an easy vote. Anywhere. Congress. Supreme Court. Voting to ensure a person's franchise in a democracy?  Who'd be against that, right? Even a dictator like Saddam Hussein believed in voting rights. 


That seemed to be Scalia's point, which in his mind explained why the Senate was too timid politically to vote against the Voting Rights Act. They're too chicken to be called racist.


But Senators don't wear a robe like Scalia, who has donned one since Reagan appointed him to the Supreme Court. And so when it comes to arguing against Section 5, for Scalia it was show time.


Here's a bit from the court transcript where Scalia lays it on the line (my comments in italics).


This Court doesn't like to get involved in -- in racial questions such as this one.

(I guess Scalia never would have let the court vote on Brown? Or does this mean he will pass on the upcoming Fisher affirmative action case?)


It's something that can be left -- left to Congress. 

(Unless, of course, the Court can serve as an ideological safety net for all those timid members of Congress who Scalia sees as unable to vote how they really feel.)


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. 

(Sound like a good pattern? But here Scalia recounts the voting record to interpret it as wimping out on the proper conservative vision.)


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.

(So minority voting rights is an entitlement like Social Security and Medicare, the less of it the better? Does that mean we should rely on our own wits and the free market to get our share of justice?)


And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution.

(But if a problem still exists as most everyone agrees? You don't stop taking your medicine for a chronic problem.)


You have to show, when you are treating different States differently, that there's a good reason for it.

(It's not enough for these states to have a history of racist incidents?)

 

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?


So Scalia doesn't want to, but darn it, someone has to be the big tough adult racist in a town like Washington.


What's startling is that as he talks of the "future," Scalia doesn't even really consider it. The future of the Voting Rights Act isn't so black and white at all. 

 

If you see the issue only from a black and white standpoint, you might come to the conclusion that race relations are getting better and the urgency is not there for Section 5 of the VRA.


But race issues are more diverse than ever before. As we speak, there is an explosion of diversity with more Asians and Latinos pouring into the South. It's a new generation of Section 5 beneficiaries. But they won't be helped if Scalia persuades a conservative majority that Congress is too cowardly to be racist, and that the court must be the defenders--of what exactly?


A Reaganite might relate to that old race paradigm. But the new one includes Latinos and Asians who face a virulent strain of racism mixed with a touch of xenophobia in society and at the polls.


These newcomers are the people whom AALDEF pointed out in its amicus brief, who need language help and translated materials to aid in their right to vote. Section 5 has been instrumental in the past and would continue to help these individuals gain a foothold in American democracy. 


Scalia's remark about minority voting rights being a "racial entitlement" is just plain offensive. 


When blacks fought for voting rights, it wasn't a racial entitlement they were seeking. They were demanding a democratic entitlement that had been denied to them. 


In this next generation, when Asian Americans need translated ballots at polling places, that's not a racial entitlement. It's about gaining access to our democracy. 


The right to vote is just one of the things that comes in the democratic swag bag. And everyone gets it. It has nothing to do with race. 


Voting is a basic entitlement in a free country, even for white people. 


Justice Scalia shouldn't be confused about that.

***

Updates at www.amok.com. Follow Emil on Twitter, @emilamok.


Posted by:Emil Guillermo

The views expressed in this blog do not necessarily represent the views or policies of AALDEF.

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