I’ve mentioned this before, but as Adam says Scalia’s comments during oral arguments in Shelby County tell you more about the Republican view of voting rights than anything you’ll read in the opinions themselves:
Seven years ago, as the Supreme Court considered a challenge to the Voting Rights Act, Justice Antonin Scalia said the quiet part loud.
The 2006 near-unanimous renewal of the landmark civil-rights bill was “attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia lectured then–Solicitor General Donald B. Verrilli. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Scalia’s logic was clear: The 1965 law, which guaranteed black Americans’ right to the franchise in the South for the first time in 100 years, was a “racial entitlement” that Congress itself would never remove, and so the high court was duty-bound to remove it. When Chief Justice John Roberts issued his ruling invalidating the law’s provisions determining which jurisdictions with histories of racial discrimination must submit to oversight by the federal government, however, Scalia’s rationale was absent from the decision. Also absent was any mention of what part of the Constitution the invalidated provision violated.
If the Court rules to allow the Trump administration to use illegal procedures to add a census question about citizenship for illegal purposes, this would be an equally stark demonstration of the Court’s commitment to white democracy and opposition to the values of the landmark statutes it considers “racial entitlements”:
Ironically, because conservatives on the Roberts Court appear to believe that government remedies for racial discrimination are worse than racial discrimination itself, there is considerable apprehension among left-leaning attorneys about providing the high court with concrete proof of racist intent in this case or any other. They fear that such proof is liable to make the Court’s conservatives more likely to rule against them. In this case, however, the evidence that adding the question was intended to bolster white political power is also further proof that the administration did not follow the law in adding the question.
The census case is not ultimately about administrative procedure; it is, more fundamentally, about whether the Trump administration can use the federal government for the explicit purpose of increasing white political power. The Trump administration, and by extension, the conservative masses, are already on board, convinced by years of right-wing propaganda that all the opposition’s victories at the ballot box are suspect. Those elements of the Republican establishment that funded and conceived of the census scheme are all in, as well. The only remaining question is whether, and to what extent, the high court is willing to ratify this step toward white man’s government. It is not the first time it has been asked to do so.
Even before William F. Buckley declared in 1957 that “the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically,” the modern conservative movement has struggled to reconcile the ethno-nationalism that moves masses of its voters with the pluralism embodied in the notion that all persons are created equal.
Trump’s victory settled the question of whether the GOP would seek to expand its base by diversifying it, or rely on the imposition of white political hegemony over a changing electorate. This is a counter-majoritarian strategy that, in the long run, relies on abandoning the pretense of liberal democracy in favor of something else: A white man’s republic, if they can keep it.
The Republicans on the Supreme Court are indeed conservatives in the William F. Buckley tradition. This means something very different than the typical pundit thinks it means.