I respect the Supreme Court. I respect our Justices. I am not fond of all of them, but generally I respect them. Justice Scalia is one of the Justices that I have never been fond of. But I can no longer extend him any respect, even the respect of being a Judge.
His comments during the Hearing on the Voting Rights Act are, in my opinion and in the opinion of many others, totally out of bounds. He called a key component of the Voting Rights Act a, “ . . . perpetuation of racial entitlement.”
I can accept some discussion about the map of Section 5 of the Act. Section 5 outlines that areas of the country covered under Section 5 must report to the Department of Justice any intended changes to voting practices. That is, if your district wants to change the voting day, or the voting hours, or change when early voting is possible, or if you need an ID card, or things of that nature, your district has to report it to the Department of Justice first. The DOJ will review the desired change and if it appears that it will not adversely affect people’s ability to vote, your district will be allowed to continue with the change. If, however, it appears that it may restrict people’s ability to vote, your district will be prohibited from going forward with the changes.
Some argue that the areas mentioned in Section 5 have changed. That time has passed and those areas no longer make the same mistakes, so the map is no longer valid. They forget there is Section 3, which allows, by petition, for areas to be removed from the Section 5 map, or other areas to be added to the Section 5 map. In short, the map is not static. The Voting Rights Act has built in a dynamic quality. A good thing.
Some argue that Section 2 allows people and districts to suit in the event of voter discrimination or voter suppression. But here is the beauty of the Voting Rights Act and Section 5. Suing in order to show discrimination or suppression is an after-the-fact practice. People have to have already been discriminated against or their votes already suppressed before they can sue. That is to say, the vote and the winners would have already been declared before the harmed individuals can even be identified or counted. In essence, their votes are thrown out, possibly allowing a rigged election to take place, which might even overrule on the suit that points out the rigging. The beauty is that Section 5 helps to prevent the discrimination before it happens, which is the only way the process can proceed properly.
Think for a moment on what Scalia has said. He sees the Voting Rights Act as a “racial entitlement.” That is, he sees the ability for people of color to vote to be a gift, an entitlement. He does not see it as a constitutional right, but as something that is merely allowed.
Think about that. We often hear about “the slippery slope.” How hard would it be to go from voting being a “racial entitlement” to it becoming a “gender entitlement?” Women, your ability to vote isn’t all that old, not as old as a black man’s ability to vote, theoretically. Once voting for anyone becomes an entitlement and not a right, it begins to be possible to eliminate that vote entirely.
Moreover, let’s look as Scalia’s statement in some context. He was discussing the various authorization votes of the Voting Rights Act, the last of which was in 2006, in which 98 Senators voted to re-authorize and continue the Act. Two Senators were not present, so it was basically a 100% vote. Scalia proposed that the Voting Rights Act is so popular and politically correct, no one could vote against it. He feels that voting against it would be so bad that it would be a risk to a Senator’s career. As such, he contends that it is no longer needed, or that it Congress is incapable of deciding such things.
To me it seems that Scalia has jumped through a convoluted hoop. He has forgotten Occam’s Razor, or that the result that makes the fewest assumptions should be selected. It requires several assumptions to think that a 100% vote for the Act is an indication that there is no longer any prejudice or that Congress, and thus the people, can no longer decide such an issue. It requires no assumptions that a 100% vote for the Act simply means that everyone is in favor of it. Scalia’s convolutions indicate some inner desire of his own to do away with the Act, or to use his words, “racial entitlements.”
I have heard that Scalia is fond of throwing bombs. He enjoys saying outlandish things in order to get a rise out of the courthouse. That may be his personality, but he needs to keep in mind that he is a U.S. Supreme Court Justice. His words go down in writing and may affect future decisions. To make light of something as important as voting rights, a pillar of American Democracy, would almost seem to disqualify him.
Any U.S. Justice that sees voting as an entitlement, and who uses assumptions to come to those conclusions is no longer just. Any Justice that makes light of voting rights does not recognize the seriousness of their position. Such as Justice is one sided, even bigoted, and does not deserve my respect, or anyone else’s for that matter.