As Mark Tushnet has pointed out, Scalia is erroneously considered an intellectual standout on the Court because of his unusual tendency to write and speak in prose more generally seen on political shoutfests and op-eds. Very frequently, these glib, attention-grabbing phrases are used to advance arguments that are essentially self-refuting. For example, the oft-quoted phrase in his Romer dissent that “The Court has mistaken a Kulturkampf for a fit of spite.” Oooh, erudite! Only, what the hell is he talking about? OK, so the Colorado amendment permanently singling out gays and lesbians and preventing any state institution from offering them rights protections is like anti-Catholic progroms and imposed legal disabilities in 19th century Prussia. Um…so you’re saying Kennedy is right? How could a “Kulturkampf” be consistent with the equal protection of the laws? If Scalia had just used the banal phrase he was presumably trying to invoke — “culture war” — this would have attracted less attention but also would have had the advantage of not blowing his own argument to smithereens in the first line.
But, as I mentioned in my piece yesterday, Scalia’s campaign in two oral arguments to argue that the strong bipartsian support for the Voting Rights Act is more reason for the Supreme Court to step in may be the best example of why Scalia is so egregiously overrated. To expand on my point a little, let’s return to what he said at oral argument in 2009:
Expressing skepticism about the significance of the 98-0 vote by which the Senate reauthorized the Voting Rights Act, Justice Scalia said, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”
First of all, we have a show of erudition that is at best irrelevant and misleading. The use of the phrase “Israeli supreme court” suggests that the practice was used by the contemporary (rather than the biblical) state of Israel. But, of course, the modern Israeli state does not have the death penalty for anything but war crimes and has never had a rule that it could only be applied by a majority-but-not-unanimous vote. Explicitly making clear that this was a reference to biblical Israel would have immediately made clear how anachronistic his point was.
But that aside, what’s more striking is that the argument is transparently idiotic. Nobody thinks that verdicts of a unanimous jury are less reliable than the verdicts of a mere majority. Permitting juries to convict without unanimity is an anomalous practice in the Anglo-American legal tradition for obvious reasons. And even in the rare jurisdictions where a supermajority rather than a unanimous jury verdict is sufficient, a unanimous verdict isn’t seen as not constituting a guilty verdict. Scalia’s glib attempted cleverness serves to make his opponent’s point perfectly once again.
And Scalia’s attempt to argue that we should be suspicious of legislative consensus is problematic for an important reason. The way the court’s reactionary wing treated the 15th Amendment yesterday stands the explicit purpose of the 15th Amendment on its head. You would think, listening to Scalia and his fellow conservatives, that Congress was being subjected to strict scrutiny here, as if the core purpose of the 15th Amendment was to guarantee the equal treatment of states rather than the equal treatment of individuals. But, of course, the 15th Amendment was ratified and included a provision giving Congress the “power to enforce this article by appropriate legislation” precisely because it believed the right of the franchise was more important than the “rights” of states. And we also don’t need to ignore the fact that we tried nearly a century of trusting the states to enforce the 15th Amendment, with results that could scarcely have been more disastrous. To try to turn the 15th Amendment into a states’ rights manfiesto in which the “federalism interest” trumps the Congress’s ability to protect the right to vote is as perverse as asserting that a jury system would function better if it ruled out unanimous guilty verdicts. And while the strong, bipartsian support of the Voting Rights Act is not in itself dispositive, it’s certainly another good reason to defer to legislative judgment about what constitutes “appropriate” legislation, which has the additional advantage of being consistent with the purpose and structure of the 15th Amendment.
To cleanse the palate, let me finish with a couple of voices who actually understand the purpose of the Civil War amendments. First, let’s turn to Justice Sotomayor:
Meanwhile, Sotomayor, for whom this seems very, very personal, made an argument from history that discrimination is an infinitely mutable thing and that, as soon as you find a remedy for one form of it, human ingenuity will devise three new ones. And she was also sharply critical of the device by which finagling the vote had been divided, for the purposes of argument, into “first generation” and “second-generation” discrimination.
“I don’t know if I would call any discrimination secondary or primary,” she said. “Discrimination is discrimination.”
But what if preventing discrimination interferes with the Sacred Dignity of the States? The 15th Amendment protects that too! Somewhere in the back. And let’s not forget the provision that Congress has to have enough but not too much support when it passes legislation enforcing the amendment. Sotomayor really needs a copy of that Federalist Society Constitution rather than the old copy she seems to be relying on.
And, to conclude, genuine hero John Lewis:
Rep. John Lewis attacked Supreme Court Justice Antonin Scalia on Wednesday, calling comments he made during a Supreme Court argument on the Voting Rights Act “an affront to all of what the civil rights movement stood for.”
Scalia, a member of the court’s conservative wing, was intensely skeptical of the Act during Wednesday’s hearing, labeling its continued existence a “perpetuation of racial entitlement.”
“It was unreal, unbelievable, almost shocking, for a member of the court to use certain language. I can see politicians and even members of Congress — but it is just appalling to me,” Lewis said on MSNBC’s “PoliticsNation.”
“It is an affront to all of what the civil rights movement stood for, what people died for, what people bled for, and those of us who marched across that bridge 48 years ago, we didn’t march for some racial entitlement,” he continued. “We wanted to open up the political process, and let all of the people come in, and it didn’t matter whether they were black or white, Latino, Asian-American or Native American.”