Fables of the Post-Reconstruction, With Antonin Scalia

Today’s oral arguments concerning the constitutionality of Section 5 of the Voting Rights Act were as depressing as you’d expect. As has been his recent tendency, Scalia did is the favor of using his hypotheticals to give away the show. He sees the robust federal protection of voting rights as a problem that the Supreme Court needs to solve, using the same kind of arguments about “special rights” the Supreme Court used to help pave the way to Jim Crow in the late 19th century:

The most remarkable example of the contemporary Republican hostility to civil rights came, unsurprisingly, from Antonin Scalia. Ensuring equal access to the ballot, asserted Scalia, represents “a phenomenon that has been called the perpetuation of racial entitlement.” As it happens, Scalia’s argument has precedent … in the white supremacist arguments made by the Supreme Court in the 19th Century when it was dismantling Reconstruction. In the Civil Rights Cases, the majority opinion sniffed as it struck down the Civil Rights Act of 1875 that “there must be some stage in the progress of his elevation when [the freed slave] takes the rank of a mere citizen and ceases to be the special favorite of the laws.” As Justice Harlan noted in dissent, this line of argument was nonsense: “What the nation, through Congress, has sought to accomplish in reference to [African-Americans] is what had already been done in every State of the Union for the white race—to secure and protect rights belonging to them as freemen and citizens, nothing more.” Harlan was right then, and he’s even more obviously right now. Ensuring equal access to the ballot does not represent a “perpetuation of racial entitlement.” It simply provides the foundation equal citizenship.

Scalia’s arguments about “racial entitlements” also represent an odd theory of democracy. The strong support for the VRA, Scalia argues, is just a product of the fact that “when a society enacts racial entitlements, it is very difficult to get out of them through the ordinary political process.” Note, first of all, the hostility evident in Scalia’s phrasing: he seems to take for granted that it’s an important goal to “get rid of” what he erroneously calls a “racial entitlement.” And leaving that aside, his argument perversely assumes the effectiveness of the bill and the political support it generated are reasons the Court should strike it down. This makes no sense. As Justice Breyer noted, it’s not irrational for legislators to want to continue to apply a remedy that has largely (but not fully) eradicated the disease of disenfranchisement.

So if I understand Scalia’s jurisprudence correctly, the 14th Amendment (which says nothing about race) applies only to racial discrimination (that affects white people) (unless a Republican has a presidential election to win), while the 15th Amendment (which explicitly forbids racial discrimination in voting and empowers Congress to enforce the provision) should not be construed as allowing Congress to prevent racial discrimination in voting, because this would be a “racial entitlement.”  Fascinating.

The rest of the Republican justices weren’t quite as explicit in their hostility, but while I guess you cold hold out some faint hope that Kennedy will pull back from the brink, I agree with Rick Hasen that the heart of the Voting Rights Act is doomed. We’ll get a superficially “minimalist” Roberts opinion that strikes down the preclearance requirement, while holding out the theoretical possibility that Congress could pass a new one, although it’s clear that no way Congress could go about it would satisfy the Court’s Republican majority.

…Paul linked to it below, but make sure to read him as well.

…see also Flatow and Millhiser. And then Serwer on Roberts’s long war on the Voting Rights Act.

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