Researching Public Law and Public Policy in the Public Interest

Voting Rights: Scalia v. minority protection


Originally published by REUTERS

It’s rare to reach a point in our national sense of humor that a sitting Supreme Court justice emerges as the butt of popular jokes for comments he made during an oral argument. That’s what happened last week, however, after Justice Antonin Scalia asked lawyers defending Congress’s extension of Section 5 of the 1965 Voting Rights Act whether maintaining the pre-clearance formula for nine “covered” states, which are subject to federal oversight, was really just a “racial entitlement” program and not a constitutional necessity.

The media filled with guffaws about the justice’s audacity. Cartoonists ridiculed his racial insensitivity. MSNBC talk show host Rachel Maddow, dismissing Scalia’s words as mere willful provocation, called him a “troll.”

We’d be wise to watch the name-calling. Insulting as Scalia’s words sound, there’s more to the justice’s comments than political incorrectness. For those who care about more than full and fair voting rights for minorities, responding to the perceived slight with more name-calling misses the point. Scalia was talking about far more than the Voting Rights Act. He was talking about whether the Constitution affords minorities any real protection for a range of discrimination anymore.

Take Shelby County v. Holder, argued February 27 before the Supreme Court: Is the pre-clearance provision of the Voting Rights Act still constitutional — though Congress found extensive examples of racial discrimination in voting as recently as 2006? One might answer yes, because Congress has the authority to do that under our system. The 2006 extension came after Congress compiled a voluminous record of problems and was passed overwhelmingly by the House and — for the first time — unanimously in the Senate.

Beyond this question of congressional power, however, is a question of belief. If you answer yes, it is because you probably hold three beliefs. First, you believe that race and color are still significant risk factors in the exercise of some constitutional rights — like voting. Second, you believe there’s reliable evidence to support the first belief. And third, you think that laws as written can fix it.

Scalia does not share those beliefs. So last week he offered a different explanation for Congress’s unanimous vote. “I think it is attributable,” Scalia said, “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.”

There are two ways to approach Scalia’s point. First, one might ask whether senators and representatives had by 2006 reached a collective point where it was understood that they should just give minorities the protection of Section 5 without question and out of habit.

That seems unlikely. There’s no evidence to support that kind of “motive analysis, as one lawyer put it, and it wasn’t really the question the court was asked to decide. It’s as hard to imagine Congress in 2006 doling out racial entitlements to vote as it is to imagine this court using that speculation to overturn a federal law.

The other way to see Scalia’s comments is that he is asking more broadly whether the continued existence of the whole Section 5 scheme — maybe even the entire Voting Rights Act — reflects an aberrant and outdated strain of racial entitlements that the court is empowered to root out. Even if the 2006 Congress offered a substantial record for its reasons. This is really why Scalia asked the question — and why so much time was then spent on it by the other justices that day.

When Scalia said “it’s been written about,” he was largely referring to conservative legal analysts , mostly dating back to when Congress reauthorized Section 5 in 1982. Senator Orin Hatch (R-Utah) was among the senators asserting the existence of what they called “racial entitlement theory.” This was the idea that the Voting Rights Act, 15 years after its passage, was being used to secure minority districts even in the absence of voter discrimination.

In the 1980s, these criticisms became lawsuits under Section 2 (the part of the law that prohibits voting discrimination nationwide), involving the question of how to prove an effort to dilute minority votes. What linked these criticisms of Section 2 and Section 5 was the question of whether an anti-discrimination principle governs the applicable test for getting federal relief.

Scalia doesn’t generally call it an anti-discrimination principle. Like many conservatives, he calls it a non-discrimination principle. To him, that means race should never matter unless there is proof of intentional racial discrimination — like explicit racial policies, lynch mobs or hate speech. Otherwise, a racial distinction for any purpose — even to address clear racial disadvantage — is unconstitutional.

This is an aggressive form of colorblindness, and since the 1980s the idea has expanded beyond voting rights cases to any case involving race. For example, in Adarand v. Pena, a 1995 case about a federal program to support minority contracting, Scalia wrote: “To pursue the concept of racial entitlement — even for the most admirable and benign of purposes — is to reinforce and preserve for future mischief the way of thinking that produced race slavery … In the eyes of government, we are just one race here. It is American.”

One person’s rights shouldn’t be another person’s mischief — or another judge’s “entitlements.” If you believe the considerable evidence that people of color still face significant disadvantages in securing the outcomes (like a quality education, personal privacy, unencumbered freedom to vote, building businesses and owning homes through fair market rules) that our federal system was designed to facilitate (under the constitutional rights to speech, to vote, to contract, to be free from unwarranted police seizures and to avoid cruel and unusual punishments), then Scalia’s comments are a special concern in search of rebuttal.

So far they’ve gotten little. Nobody wants to talk about race anymore. Scalia and less extreme conservatives have succeeded in making the issue of ironclad colorblindness and extraordinary proof of intentional race discrimination the way to see race in constitutional conversation. That’s his paradigm — and he’s sticking the rest of us to it.

Justice Stephen Breyer — no archconservative, he — asked a fair question last week that demonstrated the lack of clear rebuttal to Scalia’s views on race. Breyer asked: How do we know when the time to protect racial minorities’ constitutional rights has run out?

This the left must answer. And there is an answer — though it requires a paradigm shift. Despite extraordinary progress on race, the left must document not only the long, sad record of racial disadvantage that still exists in voting and school financing and lending discrimination. It must demonstrate the persistence of the underlying condition that allows minority districts to work, schools to fail and neighborhoods to be preyed on by subprime lenders: re-segregation.

The left must offer a paradigm that explains why too many issues we thought should go away have not. That paradigm is institutional racism, not intentional racism, the kind set in motion not by evil schemes but by inequitable rules capable of producing the same effects — unless they’re discussed openly and singled out for reform.

Consider, as an example, the issue of affordable housing. A government program provides housing vouchers so low-income, predominantly minority, families can rent housing in resource-rich, predominantly white neighborhoods. But say the program sets boundary rules that reach only as far as nearby black neighborhoods. Nobody should be surprised to see segregation by race and class continue despite such a program, yet there’s no evidence of the government’s intent to discriminate against minority renters. A voter ID law that disproportionately affects minority voters may do the same thing in the voting arena.

Will this kind of rebuttal work in future cases before the court? Certainly not now — not given the straitjacket of the intentional discrimination paradigm in which evidence of racial animus is required. In fact, conservative justices succeeded in eliminating this rebuttal during the 1980s, making systemwide race discrimination extremely hard to prove except in a few areas — voting rights and fair housing. Scalia’s questions suggest a desire to eliminate any remaining grounds to claim institutional racism.

Rather than join in a game of the (constitutional) dozens, liberals need to engage the public in a fact-based examination of institutionalized racial disadvantage. Just because discrimination wears no hood doesn’t mean it cannot deny opportunity on the basis of race and color. The empirical evidence of unintentional racial disadvantage continues to mount in educational disparities, home foreclosures, prison incarceration rates and public health problems. Some of these disparities have constitutional dimensions that will never be reached if we’re blind to their racial dimensions.

As people of color approach majority status in many parts of the country, safeguarding their full participation is increasingly imperative to all of us.

This also raises the question of what should be done with Section 5 of the Voting Rights Act. Given Congress’s 15,000-page record, listing 2,400 discriminatory voting changes from 1982 to 2006 and the 650 successful voting rights lawsuits in “covered” jurisdictions, we still need its deterrent effects in the nine states and assorted cities it covers. However, given the recentproliferation of voter suppression devices such as voter ID statutes and disproportionately long lines in minority districts in the 2012 election outside of covered districts, it is probably time to amend the Voting Rights Act to ensure equitable voting rules for all.

On the broad question of racial disadvantage, our great progress shows that overcoming discrimination takes time. Scalia-type “nondiscrimination,” or aggressive colorblindness, blinds us to the clear existence of continuing racial dis-entitlements while calling them their opposite, entitlements.

We could use more constructive language from the Supreme Court. If there is a common ground, let it be this: Every American should be impatient about racial inequity.

Our Constitution entitles us all to something better.


PHOTO (Insert A): Supreme Court Justice Antonin Scalia testifies before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque


PHOTO (Insert C): Supreme Court Justices Stephen Breyer (L) and Antonin Scalia testify before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque