While Supreme Court Justice Antonin Scalia’s remarks during oral arguments in the Voting Rights Act case left some of us scratching our heads about where he came up with the “perpetuation of racial entitlement” argument, Chad Flanders, an assistant professor of law at Saint Louis University School of Law, has an idea, tracing the phrase to a 1979 paper by then-professor Scalia:
Scalia’s point (in the context of a extended, slashing attack on racial preferences) was that affirmative action works on the idea that because of past discrimination, present generations owe a “debt” to those who have been disadvantaged by discrimination. Scalia, needless to say, thought that the idea was repugnant and even racist – and he said so.
In his article, Professor Scalia did not write about how affirmative action might become entrenched, and hard to displace. But there was the idea that affirmative action gives us a system of racial spoils that are provided to the minority race, spoils not based on present merit or need, but only on past discrimination.
Flanders also points to a 1984 George Will column that uses the same reasoning (and the same phrase). In his column, “Jackson expands idea of racial entitlement,” Will argues a contradiction between race-conscious accommodations and democratic majority rule.
Flanders reiterates that we can’t know for sure if Scalia was drawing parallels between affirmative action and Section 5 of the Voting Rights Act, but at least he gives us one possible framework in which to understand the Justice’s perspective.
If you’re interested, Scalia’s original 1979 paper is here: