Supreme Court Justice Antonin Scalia didn’t bother with subtlety while articulating his racial resentment during oral arguments on the Voting Rights Act Wednesday, particularly its key provision. According to the conservative-leaning judge, Section 5 of the law, which requires state and local governments with a history of racial discrimination to pre-clear any changes to their voting laws with the Justice Department before enacting them, is a “perpetuation of racial entitlement.” Scalia also opined, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
I imagine Chief Justice John Roberts agrees with this sentiment is some capacity given he spent his late 20s trying to take down the Voting Rights Act. Still, even he knew better than to use such inflammatory language from the bench — which reportedly caused audible gasps in the room when uttered.
Rep. John Lewis (D-GA) called Scalia’s remarks “appalling” and “an affront to all of what the Civil Rights Movement stood for.” That’s much more articulate than my initial response, which was a speed race of four-letter words and huffs of frustration.
As mind-numbingly dense and inflammatory Scalia’s synopsis of the key provision of the Voting Rights Act was, the exchange did give way to providing yet another reminder of how important it is to include the voices of minorities on the Supreme Court.
While questioning Burt Rein, Shelby County’s lawyer, on Shelby County’s record of discrimination (who are trying to challenge Section 5), Justice Sonia Sotomayor (pictured) asked:
“May I ask you a question? Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t. In the period we’re talking about, it has many more discriminating — 240 discriminatory voting laws that were blocked by Section 5 objectives. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.”
As for Scalia’s rants of securing minorities’ right to vote without obstruction from the powers that be, Sotomayor asked Rein, “Do you think that the right to vote is a racial entitlement?”
The New York Times writes that she later asked “with an edge in her voice that left little doubt she was responding to Justice Scalia’s statement” to the lawyer challenging the law, “Do you think that racial discrimination in voting has ended, that there is none anywhere?”
Sotomayor even addressed her liberal-leaning colleague Justice Ruth Bader Ginsburg‘s remarks to Rein about efforts to disenfranchise minority voters, noting that the “legislative record is replete with what they call second-generation devices.”
Sotomayor responded: “Ginsburg calls it ‘secondary.’ I don’t know that I’d call anything ‘secondary’ or ‘primary.’ Discrimination is discrimination.”
The Obama-appointee also asked, “Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?
You can read the oral arguments in full here. Throughout the arguments it became painfully clear how important it is to diversify the makeup of the Supreme Court.
Scalia’s infuriating remarks point to lingering racial bias that exists on the bench and elsewhere, but even Ginsburg and other justice’s discussion of race in the past tense shows why it is essential to have minority voices who can challenge both notions thoughtfully.
Yes, I’m excluding Justice Clarence Thomas from this discussion who opts to never ask questions given his long-professed disdain of oral arguments.
He wouldn’t have mattered, though.
Despite being a son of the South and man of color, he bemoans laws that promote “racial preferences.” He belongs in the Scalia pile of useless people.