Supreme Court Divided On Voters' Rights Act

[Ragnus]

http://www.economist.com/blogs/democ...ing-rights-act

WEDNESDAY’S oral argument at the Supreme Court on the constitutionality of Section 5 of the Voting Rights Act of 1965 brought an extraordinary piece of analysis from Justice Antonin Scalia—a comment that drew gasps from the audience. The law’s utility as a shield against voting practices that discriminate based on race, Mr Scalia suggested, had evaporated. He argued that requiring nine Southern states and sections of seven others, all with a history of discrimination, to “pre-clear” changes to voting procedures with the Justice Department is now needless interference with “state sovereignty”.

Analysing the most recent reauthorisation of the act in 2006, Mr Scalia explained away its lopsided support in the Senate (98-0) and House of Representatives (390-33):

And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same....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

After his comment caused a minor stir in the courtroom, Mr Scalia added:

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 reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution... [T]his is not the kind of a question you can leave to Congress....Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

This is not Mr Scalia's first impolitic outburst. But for a justice who stakes his jurisprudence on deferring to the democratically elected branches of government, it is a stunning line of reasoning. Consider, by comparison, Mr Scalia’s endorsement of Justice Benjamin Cordozo’s 1933 statement decrying judicial second-guessing of legislative acts:

We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.

And recall Mr Scalia’s claim in the 1990 euthanasia case Cruzan v Missouri that it is not for judges to decide when a patient’s life is “worthless”, but “it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish [to end a life] will be honored.”

So why not let the people’s elected representatives handle the matter of racial discrimination and voting? Why, in this case, does Mr Scalia believe he should substitute his views for those of legislators? Members of Congress, after all, considered 12,000 pages worth of testimony in 2006, which showed "pervasive discrimination" in the covered districts. As Justice Elena Kagan said yesterday to Burt Rein, the attorney for the petitioner, “that’s a big, new power that you are giving us...the power now to decide whether racial discrimination has been solved. I did not think that that fell within our bailiwick.”

For a justice who sniffs out closet activism even in his fellow conservative justices—in 2007 he criticised Chief Justice John Roberts for exercising "faux judicial restraint"—Mr Scalia apparently finds the Voting Rights Act to be a uniquely egregious specimen of legislative incompetence. While Mr Scalia has voted to overturn congressional laws from time to time, such as in City of Boerne v Flores (which got a brief mention during Wednesday’s argument), never has he couched his judicial activism in such cynical terms. We cannot trust the Congress to legislate earnestly on questions of race, Mr Scalia implied, because senators and representatives feel bound to uphold “racial entitlements” that their forebears have enacted. Political correctness rules.

Let us posit for the sake of argument that Mr Scalia’s cynicism is on target: American senators voted unanimously to extend the law in 2006 not because they found merit in its provisions but because they feared that a "no" vote would earn them condemnation as racists. What then? Should America trust its Supreme Court to bring a more careful, measured eye to the question? The tenor of the comments from the conservative justices suggests the answer is no. Consider the simplistic suggestion from the chief justice that because “the citizens in the South are [no] more racist than citizens in the North” we can safely ignore evidence that Southern states still systematically discriminate against minorities. Consider the ease with which Mr Scalia equated the guarantee of an equal right to vote with the concept of “racial entitlement”. And consider the failure of any justice to mention efforts in many of the covered states to depress voter turnout among minority voters in 2012. It remains highly questionable whether a majority of the Supreme Court is up to the task of diagnosing America's racial challenges.

Article focuses more on Scalia's methods of analysis but it's become a pretty hot topic issue that this act has been branded a "racial entitlement" by a justice of our highest courts along with possibly becoming a split decision when it's been overwhelmingly supported in the past in Congress.

[Acevalefor]

I agree with Justice Scalia in his analysis of the lopsided voting in Congress. However, I remember way too many news stories during the election about voter suppression to believe that racism, discrimination and bigotry are remnants of the past. Elected officials will vote to protect their own position. In jurisdictions where racism is pervasive (See Idaho), that may mean that laws end up on the books that do suppress minorities.

I am still not convinced though that it is the job of the supreme court to, as the end of the article put it, diagnose America's racial challenges.

[Niiro]

That's.....exactly what the SC is supposed to do. States don't have the right to suppress minority voters.

Just because the senate vote was lopsided as hell for obvious reasons doesn't make the legislation less necessary. Given all the shit pulled in the last election it's probably more relevant than it's been in a long time.

[Stromgarde]

It's a bit puzzling as to what the he expects the justice department to be able to do. Given the ridiculous margins it's been passing by, how hard do you think it would be to get passed as an amendment?

[Talint]

Voting is not an "entitlement".

Where are the second amendment fucksticks when you need them?

[Dotsudoku]

I am still not convinced though that it is the job of the supreme court to, as the end of the article put it, diagnose America's racial challenges.

Disagree, for the reason pointed out by Scalia: for better or for worse, it shouldn't be the job of those who answer to voters to decide whether a suggestively titled piece of legislature should be continued or discontinued

I don't think it shouldn't be a matter of "do what's correct, or do what's going to keep me in office" - even if that's pretty commonplace in other areas of politics

[kuronosan]

Don't think it should really be up to representatives to decide what their voters can or cannot do based on what keeps them in office. Sometimes rights and privileges should be freely given and/or taken away by the feds, otherwise states (who have a history of doing the opposite of 'what's good for the people') will do what it is in their own interest.

[Correction]

Voting is not an "entitlement".

Where are the second amendment fucksticks when you need them?

Implying 2nd amendment fucksticks care about black people.

[Ragnus]

Course they do. They're a giant part of their "Ooga Booga We Need Guns For Defense" motto despite not actually naming them in it.

[Talint]

Implying 2nd amendment fucksticks care about black people.

Alas, too true.

Still find it's hilarious how much time, money, effort, and energy is spent on making sure we have as many implements of wonton destruction and death as possible; but when it comes to maintaining our fundamental rights in a democracy (read: voting), these same fucksticks are nowhere to be found.

Violent overthrow of an uppity government: OK. Slight eroding of civil rights over time by an uppity government: Who cares.

[ronin sparthos]

We just had an election where local elected officials intentionally attempted to suppress the minority vote and Scalia cries "racial entitlements!" as if to say that we live in a country where the election system is fair and open to all who wish to partake. Wrapping his statement in the tried 'n true "state sovereignty" argument only further shows his attempt to bait his enemies and rile up his supporters.

He's become so wrapped up in his own ideology that the facts be damned.

[Xno Kappa]

[Clash Perez]

Are all gun owners racist, or just the ones who like the fact that the constitution protects gun ownership?