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Scalia's subtlety

The Supreme Court heard oral arguments today in Shelby County, Alabamas challenge of Sections 4 and 5 of the 1965 Voting Rights Act. The early consensus is that the key provisions of the seminal piece of civil rights legislationwhich SCOTUSblog calls historys most successful civil rights lawwill be found, in the words of Justice Antonin Scalia, not to comport with the Constitution.This being Scalia, there was more. In counter-argument, he also proffered his thesis on why Congress has repeatedly extended Section 5, most recently in 2006 with no opposition at all from the Senate: [It] was very likely attributable to a phenomenon that is called perpetuation of racial entitlement. Its been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process. His statement reportedly drew gasps, while outside the Court civil rights groups quickly condemned it. Bert W. Rein, Shelbys attorney, could not be compelled to say he agreed with Scalias assessment. Justice Sonia Sotomayor later took a moment to point out what shouldnt have needed pointing out, remarking that the right to vote is not a racial entitlement.

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Dominic Preziosi is Commonweal’s digital editor.



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Do you think that the right to vote is what Scalia had in mind in referring to "racial entitlements"? The news article to which you linked had this explanation: "Under Section 5 of the law, nine states, mostly in the South, but also including Alaska and Arizona, as well as dozens of counties, townships, cities, and elected boards in other states, must get permission, or preclearance, from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make."

Indeed, Jim Pauwels, but that section of the law is there because those states (etc etc) have a lengthy history of trying voting procedures that seek to suppress the minority vote. The whole question is about the historical difficulty of maintaining the right to vote. That law does not exist in a vacuum (and has hardly been made irrelevant by progress, given various vote-suppression shenanigans in the most recent two national elections.)

We're not talking about some altruistic desire on the part of states to make voting easier and more efficient for all. To the contrary. The Voting Rights Act made it possible for minorities to exercise the kind of power traditional voting blocs always had, and the result tends to benefit the Democrats. In addition to preventing direct racial discrimination, Section 5 complicates life for Republican secretaries of states who want to suppress the Democratic vote in counties where minorities predominate. To call that perpetuating "racial entitlements" speaks for itself. How embarrassing that a Catholic Justice came up with such a phrase; it will undoubtedly follow him to his grave.

Scalia is a good reason for the POTUS to never appoint an "orthodox" Catholic to the SCOTUS.

When I was small child and my family would be driving through the Maryland, Virginia and West Virginia countrysides, it was common to see large billboards calling for the impeachment of Chief Justice Earl Warren, ostensibly because of his opinion in Brown v. Board of Education, the landmark civil rights decision that outlawed "separate but equal" schools.Scalia has crossed a line when he voiced from the SCOTUS bench what we all knew was his personal private opinion all along: Whites have inalienable rights. People of color are given entitlements. The only way to evaluate and interpret Scalia's brain-fart in publicly revealing his repugnant opinions of the voting rights of people of color is that Scalia is a racist that would prefer to return to the days of legal segregation.Scalia has every right to these odious opinions. But, he has forfeited any further right to a lifetime appointment to SCOTUS. In my opinion, Scalia is now unfit and disqualified to serve on the SCOTUS. Either he should resign, or he should be impeached and removed from the Supreme Court bench ASAP.It's time for billboards across America calling for Scalia's dismissal impeachment: Scalia is NOT omnipotent![I'm not sure how "constitutional" this suggestion is is ... At the very least, Scalia should be subpoenaed to appear before the Senate Judiciary Committee to answer questions and explain his remarks. Probably not a good constitutional precedent to set, but Scalia must be taught a lesson that in a democracy, not even the opinions of a Supreme Court justice are beyond question.]

States, counties, etc which do not discriminate for ten years can be exempted." A jurisdiction that's marked as discriminatory can request that designation to be lifted after ten years, and every single one that's tried has been granted amnesty. " article is a good summary of the issues.

Don't forget that when Scalia speaks you will most likely hear a Opus Dei fascist slant. Conclave will hear that slant too.. That's the carrying out of the OD "charism'. get to high places and do your 'duty'.

Some background information might be helpful. Shelby County, which brought this suit challenging provisions of the Voting Rights Act, is southeast of and adjacent to Jefferson County, where Birmingham is located. It is the recipient of white flight from Birmingham, as is Hoover, a suburban city just south of Birmingham. Hoover is mainly in Jefferson County, but some of it is in Shelby County, too.In 1955, the year after Brown v. Board of Education, the population of Birmingham was approximately 325,000. Today, it is about 212,000. [Jefferson Countys population was about 560,000 in 1955. Today its about 658,000].In 1955, the population of Shelby County was about 30,000. Today, it is about 200,000.In 1955, Hoover did not exist. It was incorporated in 1967. Its population today is approximately 85,000. It is the sixth largest city in Alabama.Shelby County is the richest county in Alabama. Its median family income is about $81,500. Its per capita income is about $35,000.The city of Hoovers per capita income is about $33,500, the tenth highest among Alabama municipalities.The city of Birminghams per capita income is about $15,700, the 234th among Alabama municipalities.See

John Hayes: "States, counties, etc which do not discriminate for ten years can be exempted."I could buy that others (e.g., Ohio) should be added to the original list of states to be watched. What makes no sense is calling the Act "unconstitutional" because a few justices (Scalia and Roberts) think the original problem has been "solved" in the South. But Justice Scalia's gasp-drawing reference to perpetuating "racial entitlements" has forever given the lie to any claim that striking down this law as mere legal "housekeeping" (eliminating outdated legislation). Incredible. Literally.

Thanks for this post. It gets worse. Scalia also said, "This is not the kind of question you can leave to Congress."Here's hoping that between now and when the Supreme Court rules on the Voting Rights Act, Justice Scalia get acquainted with the text of the 15th amendment to the United States Constitution:"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.Section. 2.The Congress shall have power to enforce this article by appropriate legislation."It's hard for me to see how anyone who claims to hold to an "originalist" interpretation of the constitution could (in any intellectually honest fashion) conclude that the Voting Rights Act is not an appropriate exercise of Congress' power as defined in section 2 of the amendment.

If Article 5, which seems to be the subject of Scalia's remarks, is deemed unconstitutional by the Court, would it be severed from the rest of the legislation, which would remain intact?

Jim P: Yes, section 205 of the 1970 amendment is a separability clause. The full bill (original plus various additions over the years) is here: The 1970 amendments seem to have been hastily drafted (sections 203 and 204 are headed JUDICIAL RELEIF" and "PENATLY") but it was passed and is presumably good law nonetheless . . .

Section 5 puts the burden of "pre-clearance" on nine states and assorted jurisdictions (Manhattan, the Bronx, and Brooklyn among them); they must apply for Congressional approval for any modification in voting procedures, including, say, extension or reduction of polling hours; procedures covering early voting and mail-in ballots; or the need for voters to acquire and present specific forms of photo identification before being allowed to cast a ballot. Section 2, which puts the burden on the plaintiff, would be left intact, but it's clearly Section 5 that gives the Act its teeth. Congress, to the chagrin of Scalia, was united enough in 2006 to exercise its Constitutionally granted power to extend the act in its entirety (after an evidence-based review led by Rep. Republican F. James Sensenbrenner, who cited a 12,000-page judiciary committee record detailing proven instances of discrimination in the covered jurisdictions). Should Section 5 be struck down, Congress could develop new criteria for deciding which jurisdictions would be covered. But who thinks there's any chance of that happening, given the divisions in both houses? As Adam Liptak writes in today's New York Times ( ): "[T]he part of the law requiring federal pre-approval of election changes would effectively disappear." But it really is the hostility emanating from the bench that's galling. Ninety out of 110 representatives from the jurisdictions covered by Section 5 voted for extension; overall, it passed in the House 390 to 33 and the Senate 98-0. Does Scalia actually think 488 legislators voted as they did only to feel good about themselves -- or because, as he said, "Even the name [Voting Rights Act] is wonderful"?

"Should Section 5 be struck down, Congress could develop new criteria for deciding which jurisdictions would be covered. But who thinks theres any chance of that happening, given the divisions in both houses? "The Constitution provides a remedy for a dysfunctional Congress. Should events play out the way you describe, which seems a reasonable prediction, then it's up to the citizens.

"Ninety out of 110 representatives from the jurisdictions covered by Section 5 voted for extension; overall, it passed in the House 390 to 33 and the Senate 98-0. "That would seem to be a hopeful sign that replacement legislation may not be as far-fetched as you fear.

Given the chastened state of Republicans these days, I doubt that enough could be rounded up to block passage of replacement legislation.

Republicans are chastened?

Jim - "chastened state"? Have I missed something? A filibuster on the Hagel nomination, obstruction and obfuscation on sequestration, back-pedaling on immigration and gun violence.... And when it comes to voting, documented and acknowledged intent to make voting more difficult for citizens who might cast ballots for the other party. Even this week, certain states have remounted efforts to change the allocation of electoral votes from winner-take-all to an apportionment system that had it been in effect last November would have resulted in a Romney electoral victory. wish I could share your hopefulness, if that's really what it is. But given the continued machinations of a party unable or unwilling to accept the results of a democratic election or the changing demographic of the electorate, and bent on venting its displeasure with those results through obstructionism, I can't.

"Jim chastened state? Have I missed something?"Possibly.* Republicans gave President Obama his tax increase on the rich to avoid the fiscal cliff.* Republicans are showing signs of genuinely working with the President on immigration reform. It's there for the taking if both sides want it to happen.* The nomination of Secretary Hagel has been confirmed after another attempt by Republicans to mount a filibuster failed to round up the necessary votes.While nobody has gotten rich over the last two years underestimating the stupidity of GOP leadership, I'd like to think that even they wouldn't be so daft as to run with an issue that would invite Democrats to try to remount the Civil Rights movement. There is no percentage for Republicans that I can see in standing in the way of legislation that would fix whatever defects the Supreme Court finds in the current law.

Agree with the offensiveness of this remark from the bench.OTOH - he does raise an issue about whether laws do need sunset provisions in them...yet, this law does have to be reviewed and reconfirmed regularly - so what is his point? And to frame it with such divisive language?Rachel Maddow last nite added to some of the facts (such as John Hayes as provided)- since the Senate in 2006 reconfirmed this section 98-0; there have been more than 1,000 suits filed at DOJ in terms of attempted violations or efforts to skirt around section 5 across the states/counties this applies to.Does Saclia even have a grasp of all of the data? Or is he merely focusing on section five in a narrow legal manner?And his suggestion that congress has no place in this? seems to have forgotten the constitution.

@Jim Pauwels (2/28, 12:31 pm) For what it's worth, I can see where there would be some "percentage for Republicans...standing in the way of legislation that would fix whatever defects the Supreme Court finds in the current law".Making it harder for people to register and to vote would disproportionately benefit candidates who attract the votes of the more fluent (in English), the more affluent (in money), the more mobile (car owners), the more settled (homeowners)---all constituencies that make up the base of the Republican Party.As for inviting Democrats to "try to remount the Civil Rights movement", that's pretty much what happened with all the voter ID laws and regulations Republicans passed (and tried to pass) in the last two years. Heck, Florida's Gov. Scott ran last year's election so that a 102 year old woman had to stand in line for several hours simply to cast her ballot.

I served intermittently during the late 70s and early 80s as a federal poll observer in Georgia, Alabama, Mississippi, and Louisiana. It was our job to monitor compliance with the 1965 Voting Rights Act. Generally, we observed elections in rural areas. Most of the time, there were no problems.I do recall one time, however, when we had an observer in a small town, and we had no relief for her to grab a quick lunch. When she returned to her polling place where paper ballots were being used, someone complained to her that a black man had been forced to change his vote by a white female poll worker. As the story went, the man checked his candidate preference, folded his ballot, returned to the table to insert his ballot into the ballot box. The woman --- his boss --- thereupon opened his ballot and said, "You don't want to vote for so-and-so, do you?" He changed his voting preference, and his boss placed it in the ballot box. As our team co-captain, I reported this incident to our DOJ attorney back at the county courthouse. She replied this was not the first time there had been a report about the female poll worker. Unfortunately, Uncle Sam was never able to obtain confirmatory evidence to prosecute the worker in federal court: she had always been able to outwit the observers and/or threaten her workers behind the scenes.On another occasion, one of my OPM colleagues in Louisville was dispatched down South to observe a local election. Being relieved to have lunch, he and two or three other observers drove to a nearby cafe. When they later exited the establishment, they noticed all four tires of their rental car had been slashed. (Uncle Sam always used rental cars for these assignments: no need to drive a GSA vehicle with government plates into towns where we generally served.)Admittedly, these were exceptions to the rule based on my ten or so voting rights assignments over the years. I have to wonder what the situation is like today. Every observer was required to submit written and detailed reports to the DOJ attorney during debriefing before returning to his or her office back home. What might these reports reveal, if anything, today?

Scalia gives "activist judges" a newer, more indisious meaning.Some day we will need to have a constitutional convention that puts term limits, either by age or years of service ... which comes first, on all members of the SCOTUS. There would be no politics involved and their equality with POTUS and members of Congress in that regard would be enforced.

Dominic Preziosi: "Ninety out of 110 representatives from the jurisdictions covered by Section 5 voted for extension; overall, it passed in the House 390 to 33 and the Senate 98-0. Does Scalia actually think 488 legislators voted as they did only to feel good about themselves or because, as he said, Even the name [Voting Rights Act] is wonderful?"Scalia really stepped in it, as they say. He, and Roberts with him to a lesser degree, betrayed layers of oblivion with those remarks. No less than Romney commiserating with his wealthy donor base about the 47% of Americans who have the audacity to think they're "entitled" to food and health care, Scalia let it be known how distant he really is from the real problems and recent history of the America the rest of us know. It's as if he was born in a bubble with those Americans who remember nothing from before Ronald Reagan was president, and everything since only "as written" by the conservative authors they trust.

"Does Saclia even have a grasp of all of the data?"With an activist judge/justice, facts do not trump ideology.Scalia might be the mouth that roars, but he is in sync with Alito, Roberts, Thomas and (way too often) Kennedy.And what do all of these conservative justices have in common? (Hint ... religion.)

The right to vote is not a racial entitlement but Sotomayor's question is a classic mis-direction. The real question - Is federal pre-clearance a racial entitlement - is an entirely different issue. A temporary and extraordinary measure enacted 48 years ago, with a final life of at least 66, strikes me as something that might be. FYI, It applies to nine states Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia and to scores of counties and municipalities in other states, including the boroughs of Brooklyn, Manhattan and the Bronx.I live in NYC and certainly think it has outlived its usefulness here.

In recent years I haven't heard of any intimidation of voters at the polls. What concerns me are some of these new registration laws which cut poor people (not only black ones) off at the pass, so to speak -- they end up not being able to vote at all. And gerrymandering, one of the worst temptations in democratic systems, still happens. Those are the imperfections that should be fought tooth and nail.

Luke - you may be right, and the GOP would continue to be the Stupid Party. We'll see how events unfold.Joseph J - those are really interesting anecdotes. My own view, FWIW, is that overt racial bias is primarily a generational thing. (I'm talking now about general bias, not politically-motivated shenanigans; if those African-American voters who were forced to wait in long lines in 2012 were likely to vote Republican, I expect that GOP-controlled legislators would have arranged to get them in and out of the polls in minutes). Even the late '70s and early '80s when you were an observer were at least one generation ago. I was first eligible to vote as an 18 year old in November 1979. In my estimation, my late-Boomer generation as a whole, while far from perfect in its racial attitudes, is nevertheless a post-Civil Rights generation that inherited a legacy of racial equality as a "given" and is far better than my father's or grandfather's generation in this respect. I'm old enough now that some of my children are old enough to vote, and my observation is that their generation's commitment to racial equality (and equality in almost all forms) arguably is even better than my generation's. I don't know what would happen if this section of the Civil Rights act is struck down. I do think that things are not the same now as they were in 1965. But I would predict that the shift in generational attitudes almost certainly would drive a new a just and equitable arrangement if the old arrangement is struck down.

The cover illustration for the latest issue of "Businessweek" at least raises the question of how far we've moved towards racial equality.

Luke - that cover is amazingly offensive. What could they possibly have been thinking?

"Yet Shelby County vs. Holder seems like an odd case to advance the Roberts Courts (and Blums) agenda, because in Shelby County, black elected officials are being pushed out of office by the same racial gerrymandering that once ensured that no black candidate could win an election in the Jim Crow South."This entire article by Lou DuBose is worth reading: documents in clear, precise, well-reported detail how---despite whatever changes have happened in some parts of U. S. society over the past 50 years---manipulating elections and governmental institutions to create and maintain white supremacy is alive and well in these United States.For what it's worth, DuBose also notes that the father of the lawyer bringing "Shelby County v. Holder" to the Supreme Court chaired the 1948 Alabama delegation to the Democratic National Convention and, along with Bull Connor, led the Dixiecrat walkout because they had pledged "never to cast their vote for any candidate associated with a civil rights program such as adopted by this convention."

Luke - conspicuously absent from that Washington Spectator piece is any mention of party affiliation. Here is a listing of the Shelby County commissioners. is a sample ballot from the 2012 elections. entire board appears to be Republican.

Coincidentally, Scalia -- nominated to the Supreme Court several years before selecting federal judges became politicized -- was confirmed by a 98-0 vote of the Senate. Does he think his confirmation was a gift or an entitlement?

Angela, in Tawdry Tony Scalia's case ... a horribly, horrible mistake.

There is a bailout procedure in the VRA, under which covered jurisdictions can be freed of the need for pre-clearance. They have to show a history of non-discrimination for the previous ten years and positive steps to ensure the voting rights of minorities. Dozens of jurisdictions have applied successfully.It seems to me that that would be an easier way to get out from under the burden of pre-clearance than a lengthy court case. provided a jurisdiction has actually not been discriminating recently against a porrtion of its citizens.

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