Justice Scalia: Voting Rights Act Is A Perpetuation Of Racial Entitlement

image of Justice Antonin Scalia
Justice Antonin Scalia

During oral arguments today over Section 5 of the Voting Rights Act, Justice Antonin Scalia uttered probably the most racist comment ever heard in the US Supreme Court in 50 years. He complained about how Congress keeps passing renewal of the Voting Rights Act even if it might not be needed. He claimed that the act of Congress is a “perpetuation of racial entitlement.” Of course Scalia is wrong.

In expressing his deep skepticism Wednesday for the constitutionality of a centerpiece of the Voting Rights Act, Justice Antonin Scalia questioned the motivations of Congress for repeatedly reauthorizing it since it was initially passed in 1965.

“I don’t think there is anything to gain by any senator by voting against this act,” Scalia said during oral arguments in Shelby County v. Holder. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful, the Voting Rights Act — who’s going to vote against that?”

At issue was the constitutionality of Section 5 of the 1965 law, which requires state and local governments with a history of racial discrimination to pre-clear any changes to their voting laws with the Justice Department prior to enacting them.

Congress has renewed the law four times, most recently in 2006 for a period of 25 years. The margin of victory was 99-0 in the Senate and 390-33 in the House.

Scalia attributed the repeated renewal of Section 5 to a “perpetuation of racial entitlement.”

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

So having one’s voting rights protected is a “racial entitlement”? Really?

If we follow Scalia’s tortured reasoning then I guess as soon as Lincoln issued the Emancipation Proclamation everything was fabulous for African-Americans or after the 15th Amendment was passed we didn’t need to work to protect the rights of minorities because we moved into the great post-racial era of the 1870’s. Whooo hoooo!

Unfortunately we know even from recent evidence that voting rights for minorities need to be protected even today.

Last week, the state of Texas submitted an amicus brief calling up the justices to strike down this landmark voting rights law. Ironically, however, the brief does far more to explain why Section 5 of the Voting Rights Act is still necessary. Texas’ primary argument is that the nation’s most important voting rights law must be gutted because it prevents the state from enacting a law that suppresses the minority vote:

The preclearance proceedings involving Texas’s voter-identification law illustrate the enormous burdens of the section 5 regime. Section 5 has empowered the Department of Justice to thwart the implementation of a constitutional voter-identification measure with abusive and heavy-handed tactics.

DOJ’s actions during the preclearance process indicate that the Department has not heeded this Court’s decision in Northwest Austin and leave no doubt that DOJ will continue to enforce section 5 in a manner that aggravates rather than mitigates the “federalism costs” imposed by the preclearance regime. The only way for this Court to alleviate these unwarranted and burdensome federalism costs is to declare the reauthorization of section 5 unconstitutional.

Texas To Supreme Court: Strike Down The Voting Rights Act So That We Can Suppress The Vote

Voter ID laws are the new poll tax. Such laws would disproportionately hurt racial minorities and that is what Section 5 is suppose to address.

Unless and until poll taxes like Voter ID laws are no longer a threat I strongly disagree with Justice Scalia. The Voting Rights Act is NOT a “perpetuation of racial entitlement” since civil rights aren’t an entitlement to be taken away on a whim unless one doesn’t believe in the Constitution.


Here is the text of Scalia’s remarks in context:

JUSTICE SCALIA: …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?

Five reasons why Section 5 of the Voting Rights Act is in grave danger