On Wednesday, the Supreme Court heard oral arguments in a case that could mean the end of a key provision of the 1965 Voting Rights Act. At the heart of the case is the question of whether states with a long history of racial discrimination must still get permission from the Justice Department before changing their voting laws.
We’ll have to wait until summer for the Court’s decision. But we can take a pretty good guess about what one of the justices thinks about the VRA right now. In comments that drew gasps from lawyers listening in at the Court, he made no secret of his feelings about the law.
That’s why he is getting my letter today.
Dear Justice Scalia,
It’s me, Melissa.
By now, we know you well enough that there’s not much you can say or do that would come as a surprise. We can set our watches by your decisions that, predictably, will be in alignment with the Court’s most radically conservative reasoning. We know that unlike your friend Justice Clarence Thomas, who has a permanent mute button on, you will always voice an opinion, and it will be heavily influenced by your political agenda..
But even given all of that, what you had to say during Wednesday’s oral arguments still came as a genuine shock.
Commenting on Congress’s nearly unanimous re-authorization of the Voting Rights Act in 2006, you said, “I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.”
You went on to say, “I am fairly confident it will be re-enacted in perpetuity…unless a court can say it does not comport with the Constitution…It’s a concern that this is not the kind of a question you can leave to Congress.”
Racial entitlement? Not a question you can leave to Congress? Even for you, Justice Scalia, this is a particularly willful misreading of the Constitution you claim to adore.
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” You see Congress does in fact have the authority to enforce both equal protection and the franchise for American citizens. Especially when those citizens live in the former Confederate states.
In fact, the 14th Amendment spends much of sections two, three and four spelling out precisely how those states who were involved in “insurrection or rebellion” will be treated differently.
Because these were states whose economies and culture rested on the inter-generational, chattel bondage of human beings. And they were so determined to keep holding human beings in slavery that they got together in armed rebellion against the country.
Some of those same states–more than 150 years later–are still trying to pass laws that would deny the vote to the very people the Voting Rights Act, and Section 5 in particular, were meant to protect.
So excuse me, Antonin, if I am a little dismayed that you now describe the rights of citizenship as a “racial entitlement.”
Contrary to what you are suggesting, the Voting Rights Act was no gift given by the government to black people. Its primary purpose was to enforce a right that was already enshrined in the Constitution but had been repeatedly flouted by Southern governments.
Here is what you miss, Justice Scalia. A great thing occurred in the 1860s when Congress had to grapple with how to include the formerly enslaved within the circle of citizenship. That effort led Congress to articulate due process, equal protection, and a federally protected right to vote. Those pillars of citizenship apply to all. It is the opposite of a special entitlement.
But the constitutional amendments were not enough. It took an act of Congress, almost 100 years later, to make these promises a reality for all.
So, Justice Scalia, when you spew that entitlement discourse from the bench you undermine the very core of our democracy. But you know what? I want to thank you for what you said. Because on Wednesday, you showed us all exactly who you are.
And in the words of the late, great poet Notorious B.I.G.: “if we didn’t know, now we know.”