U.S. Supreme Court Justice Antonin Scalia is alleged to be one of the great intellects of conservative jurisprudence, but his comments during oral arguments over a challenge to the 1965 Voting Rights Act displayed all the mental acuity of a third-tier talk radio bozo.
Shelby County, Ala., is making the case against the voting law. Section 5 of the act empowers the federal government to negate new local and state voting rules if they would lead to discrimination against minority voters. It has been enforced primarily in Southern states that had a long, dismal history of preventing African Americans from voting. Shelby County contends the problem has been remedied and so Section 5 is no longer justified.
Georgia's U.S. Rep. John Lewis begs to differ. Lewis was severely beaten in Selma, Ala., during the 1965 "Bloody Sunday" police riot directed against peaceful civil rights marchers. The horror of that scene as it played out on America's television screens led directly to congressional approval of the Voting Rights Act.
In an interview with USA Today, Mr. Lewis talked about the methods used to bar blacks from voting back in 1965 and insisted that more subtle impediments still are being employed to undercut voting rights today. "You may not have what we had, such as the literacy tests, or asking people to count the number of bubbles in a bar of soap or the number of jelly beans in a jar," Mr. Lewis said. "It may not be the overt acts of violence that we had and witnessed during the '60s. But the result is the same."
As recently as 2006, both houses of Congress agreed with Mr. Lewis. After extensive testimony, lawmakers determined that a long list of problems still exists, and they renewed the Voting Rights Act for another 25 years. The vote was overwhelming in the House and unanimous in the Senate and was hailed by President George W. Bush as a victory for American democracy.
In court on Wednesday, however, Justice Scalia mocked that vote. He said the Senate's unanimous vote simply proved the law had not been given serious consideration. The senators were afraid, he said, to cast a vote against a law with a "wonderful" name. He went on to assert that the reauthorization of the act was merely "a phenomenon that is called perpetuation of racial entitlement."
That sort of legal reasoning may be good enough for someone sitting on a bar stool well into his third pint, but it is not good enough for the highest court in the land. Mr. Scalia makes self-serving assumptions about what was on the minds of senators in 2006 -- afraid, not serious, enamored with a name -- with no facts to back up his barbs. Tossing actual statistics back at Mr. Scalia, Justice Elena Kagan cited a string of continued voting rights violations. As to the state of mind of the senators, she said the unanimous vote was pretty good proof the evidence of contemporary abuses was convincing, even to conservative southerners.
"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," Ms. Kagan said.
Undeterred, Justice Scalia opined that a law governing voting rights is "not the kind of question you can leave to Congress." Oh, really? The right to vote is the core of our constitutional democracy. It is not, as Justice Scalia says, "a racial entitlement," it is an American entitlement. It seems that might be a very useful thing for Congress to watch over and protect. It was eminently important in 1965 and remains important today.
One need only consider the outrageous voter suppression measures attempted in Ohio, Pennsylvania, Florida and other states in the 2012 election cycle to see that the right to vote is still something certain Americans must fight for. It is true that impediments put in the way of black and Latino voters now are not so much about racial animosity as they are about the fact that those racial groups overwhelmingly vote for Democrats, but the effect, as Mr. Lewis says, is the same.
Given the weirdness of his comments, it might not be wrong to assume Mr. Scalia's true concern is less about "racial entitlement" than it is about making sure his fellow Republicans are entitled. Entitled, that is, to manipulate elections when they can no longer win fair and square.
Two-time Pulitzer Prize winner David Horsey is a political commentator for the Los Angeles Times. Go to latimes.com/news/politics/topoftheticket/ to see more of his work.