Supreme Court Justice Antonin Scalia at Wesleyan University in Connecticut, 03/08/12. (photo: AP)
Is Scalia a Troll?
03 March 13
Why does Justice Scalia hate the Constitution? And is he a troll?
15TH AMENDMENT TO THE U.S. CONSTITUTION
[Ratified February 3, 1870]
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
ongress's 2006 renewal of the 1965 Voting Rights Act was the subject of 76 minutes of oral argument before the U.S. Supreme Court in February, although Associate Justice Antonin Scalia, 77, gave the impression that he thought the legislation was really called the Voting Entitlement Act.Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Early in the hearing on a frequently non-compliant Alabama county's appeal of the Voting Rights Act,
Scalia tried leading Alabama's counsel into agreeing to a specious
conclusion by citing the 1965 Senate vote of 79-18 to pass the act,
compared to the Senate's 2006 unanimous 98-0 vote to renew the act.
"It must have been even clearer in 2006 that these
States were violating the Constitution," Scalia said. "Don't you think
that's true?"
"No," said the Alabama counsel, "I think the court has to --"
Associate Justice Elena Kagan, 53, interrupted, tongue
in cheek: "Well that sounds like a good argument to me, Justice Scalia.
It was clear to 98 Senators, including every Senator from a covered
state, who decided that there was a continuing need for this piece of
legislation."
"Or decided that perhaps they'd better not vote
against it," Scalia answered, "that there's nothing, that there's no --
none of their interests in voting against it."
Justices Avoid Discussing Psychic Powers
"I don't know what they're thinking," said Associate
Justice Stephen Breyer, 75, as he changed the subject from Scalia's
speculation based, apparently, on retrospective, paranoid mindreading of
those voting Senators in 2006.
But Scalia was back a few minutes later, this time trying to lead the government's counsel, Solicitor General Donald Verrilli:
"You could always say, oh, there has been improvement, but the only
reason there has been improvement are these extraordinary procedures
[the Voting Rights Act] that deny the States sovereign powers which the
Constitution preserves to them. So, since the only reason it's [voting
non-discrimination] improved is because of these procedures, we must
continue those procedures in perpetuity."
Verrilli: "No."
Scalia: "Is that the argument you are making?"
Verrilli: "That is not the argument. We do not think that --"
Scalia: "I thought that was the argument you were just making."
Verrilli: "It is not...."
Chief Justice John Roberts Jr., 58, jumped in here to
state that Massachusetts "has the worst ratio of white voter turnout to
African American voter turnout," but that the best ratio is in
Mississippi. It wasn't clear what point he was making.
Massachusetts Rebuts Roberts's Slur
Roberts's assertion was apparently false, according to Massachusetts secretary of state William Galvin, who commented on WBUR radio on March 1:
"I'm disturbed, first of all, that he is distorting
information. You would expect better conduct from the chief justice of
the United States. I'm a lawyer, he's a lawyer, lawyers are not supposed
to provide disinformation in the course of a case. It's supposed to be
based on truth.
"What's really distressing is the deeper we looked
into the facts, the more of a distortion his comments are. The only
reference that we can find of any kind in any statistical chart is a
Census Bureau study from 2010 where, if you included non-citizen blacks,
then you would come up with a lower number. That's the only way he
could get to even make the bare-face claim that he made."
Roberts later asked Verrilli, "Is it the government's
submission that the citizens in the south are more racist than citizens
in the North?"
"It is not," Verrilli said, going on to add something
fuzzy about "congruent and proportional" - rather than just pointing out
that it's irrelevant how racist your feelings are, constitutionally, as
long as you're allowing all citizens an equal opportunity to vote.
Does Scalia Want to Pre-empt Congress or Not?
Moments later, Scalia was back making the
contradictory argument that began: "This Court doesn't like to get
involved in -- in racial questions such as this one. It's something that
can be left -- left to Congress."
After reciting a brief legislative history, Scalia
returned to his concern that the Voting Rights Act had passed with so
little opposition in 2006, leading up to the remarks that have since
earned him such widespread, mostly hostile comment:
"Now, I don't think that's [the favorable vote]
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. 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.
"I don't think there is anything to be gained by any
Senator to vote against continuation of this act. And I am fairly
confident it will be re-enacted in perpetuity unless -- unless a court
can say it does not comport with the Constitution. You have to show,
when you are treating different States differently, that there's a good
reason for it.
"That's the -- that's the concern that those of us who
-- who have some questions about this statute have. It's -- it's a
concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now....
"Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"[emphasis added]
Scalia Opens Constitutional Confrontation with Congress
In the space of a minute or two, Scalia argued that
(1) racial questions like the Voting Rights Act should be left to
Congress and (2) that renewal of the Voting Rights Act "is not the kind
of a question you can leave to Congress." But he doesn't acknowledge
that inherent contradiction, never mind make an attempt to explain and
resolve it.
Why not?
Perhaps because "There are certain districts in the
House that are black districts by law just about now...." which is
factually false and seems to reveal the kind of irrational fear that
rarely comes in the form of concern over "white districts by law," even
though white districts are far more common and numerous than any other
kind of district.
Scalia's concerns are manifestly racial, if not
racist. He uses the phrase "racial entitlement" and repeats it, not only
for emphasis, but to argue that this racial entitlement to voting is a
reality, and that it's "difficult to get out of" ... and implying that
the country should get out of it, even if that takes the Supreme Court
to tell the Congress what it should have been thinking seven years
earlier. And there's a certain specious appeal to Scalia's argument,
especially to those who would prefer to see racist politics work without
having to think of themselves as racist.
What's specious at the core of Scalia's riff is his
characterizing voting rights as "entitlements." Voting rights are
rights, unless one wants to go down a logical path that would also
disenfranchise women because their right to vote is really just a
"gender entitlement."
What Does the Supreme Court Owe to Reality?
Scalia sketches a legal and political wonderland in
which as many as five justices may be wandering, untethered to the
reality in which most of the country continues to live. In that reality,
the Congress made a factual record before voting to renew the Voting
Rights Act in 2006. That record included some 20 hearings and 15,000
pages of evidence, all of which supported the conclusion that, while the
country has made progress under the Voting Rights Act, voting rights in
America remain subject to frequent abridgement or denial.
Responding carefully to Scalia's desire to correct Congress's earlier state of mind, Solicitor General Verrilli said:
"I do -- I do say, with all due respect, I think it
would be extraordinary to -- to look behind the judgment of Congress as
expressed in statutory findings, and -- and evaluate the judgment of
Congress on the basis of that sort of motive analysis, as opposed to --"
At which point Scalia interrupted to make a
distinction without much difference: "I'm not talking about dismissing
it. I'm -- I'm talking about looking into it to see whether it makes any
sense."
Shelby County, Alabama, which initiated this challenge
to the Voting Rights Act in 2010, is both a recent and chronic
offender, where state legislators were caught on tape referring to
African American voters as "illiterates" and "aborigines." Shelby County
lost its case in federal district court and lost again on appeal. Even
the dissent in the appeals court decision acknowledged that "It goes without saying that racism persists," and later added:
"None of this [dissent] is to suggest that the country
need for a minute countenance deliberate voting rule manipulations
aimed at reducing the voting impact of any racial group, whether in the
form of restrictions on ballot access or of boundary-drawing."
Justice Sotomayor Counterbalanced Scalia's Views
Early in the oral argument, Associate Justice Sonia
Sotomayor, 59, noting the flawed voting rights record of both Shelby
County and the state of Alabama, commented to the Alabama counsel,
"You're asking us -- to ignore your record and look at everybody
else's." She continued, getting little response:
"... there's no question that Alabama was rightly
included in the original Voting Rights Act. There's no challenge to the
reauthorization acts... It's a real record as to what Alabama has done
to earn its place on the list....
"Discrimination is discrimination. And what Congress
said is it continues, not in terms of voter numbers, but in terms of
examples of other ways to disenfranchise voters...."
Reinforcing this point, Associate Justice Ruth Bader
Ginsburg, 80, pointed out that the dissent in the district court
decision had said, "If this case were about three States, Mississippi,
Louisiana, and Alabama, those states have the worst records, and
application of Section 5 [of the Voting Rights Act] to them might be
okay."
Near the end of the hearing, Sotomayor directly asked
Alabama counsel, "Do you think that the right to vote is a racial
entitlement in Section 5?"
Alabama counsel side-stepped, referring to the
Fifteenth Amendment to the Constitution. Sotomayor tried again: "I asked
a different question. Do you think Section 5 was voted for because it
was a racial entitlement?"
When Alabama counsel still gave no direct answer to
the question, Sotomayor asked a related question: "Why do you think we
[the Supreme Court] should make the judgment, and not the Congress,
about the types and forms of discrimination and the need to remedy
them?"
Again, Alabama counsel had no direct answer, but after
a minute or so of meandering, he said: "I think the problem to which
the Voting Rights Act was addressed is solved...."
Alabama Counsel Avoids Giving Direct Answers
Moments later Justice Kagan came back to that: "You
said the problem has been solved. But who gets to make that judgment
really? Is it you, is it the court, or is it Congress?"
Alabama counsel, after brief banter: "... it is up to
the Court to determine whether the problem indeed has been solved and
whether the new problem, if there is one --"
Kagan, jumping in: "Well, that's a big, new power that
you are giving us, that we have the power now to decide whether racial
discrimination has been solved? I did not think that that fell within
our bailiwick."
Alabama counsel immediately denied he'd meant what
he'd just said, Justice Breyer spoke up to smooth things over, and the
hearing was soon over.
Associate Justice Anthony Kennedy is widely thought to
be the swing vote in the case, deciding whether it was constitutional
for Congress to extend the Voting Rights Law to address a problem it
found still existed, albeit in sometimes new forms. Kennedy was active
in the hearing, but his comments were far less pointed than some of his
peers, although at one point he asked about applying the law to all the
states and not just the ones with an overt record of voting rights
discrimination.
But Kennedy also inquired, in effect: How is Shelby
County hurt by the formula in the law when the county's record of voting
rights discrimination would be caught by almost any rational formula?
Although Associate Justice Clarence Thomas, 65, has
benefitted from the Voting Rights Act, as well as actual racial
entitlements, perhaps more than any other justice, he had nothing to say
during the hearing.
So Is Justice Scalia Just Being Provocative?
In the midst of initial reaction to Scalia's comments
about the "perpetuation of racial entitlements" and other jibes, MSNBC
commentator Rachel Maddow compared the justice to an internet troll.
Maddow, who was in the audience for the Supreme Court's oral argument
February 27, appeared as a guest on The Daily Show with Jon Stewart the
following day, where she said: "It's weird to see Antonin Scalia in person. It's weird."
Then she explained, with a little mindreading of her own as to what the mindreading justice was up to with his choice of words:
"... it's not a real vote. It's a racial entitlement
now. Voting is a racial entitlement, something that you are entitled to
on the basis of your race.
"Wait a second. Do you know how that sounds?
"But I think he does know how that sounds, and that's
the neat thing about being there in person because you can see oh,
actually, he's a troll. He's saying this for effect.... He knows it's
offensive and he knows he's going to get a gasp from the courtroom which
he got. And he loves it.... He's that kind of guy."
Is he that kind of guy? Is he a troll?
It's possible he goes out of his way to offend, given
Scalia's behavior over the years. But if he's just "saying this for
effect," he'd be likely to end up voting to uphold the constitutionality
of the Voting Rights Act. Anything's possible.
But if he's not "saying this for effect," if he's saying things because he means them,
then it's more likely that he'll vote to hold that the 1965 law has
outlived its constitutional expiration date. That, too, would be
consistent with his behavior over the years as something of a racist royalist whose divination of the Constitution's original meaning might well include the realities that non-whites were mostly slaves, and voters were all white male property-owners.
No comments:
Post a Comment