Antonin Scalia, Election Law, Politics, SCOTUS, Supreme Court

Voting Rights Act Oral Argument: Just How Drunk With Power Has Justice Scalia Become?

This morning the Supreme Court heard oral argument in the challenge brought by Shelby County, Alabama, to the Voting Rights Act. I’m not really concerned with the particulars of the argument as articulated by the attorneys (U.S. Solicitor General Don Verrilli for the government, Bert Rein arguing for Shelby County), or the substance of the justices’ questions. The Court has been jonesing to strike down Section Five of the Voting Rights Act, which requires certain jurisdictions to “preclear” changes to their election laws with the federal government to be sure that they aren’t racially discriminating against minorities.

Chief Justice John Roberts seems to subscribe to the butthurt view that after 400 years of the enslavement and oppression of African-Americans in this country, now the only way to protect the rights of minorities is to make sure white people don’t feel discriminated against. Justice Anthony Kennedy seems to think he can make policy for the rest of the country, even though Citizens United should have shown him that he has no idea how the real world works. And the other three conservatives on the Court, Justices Scalia, Thomas, and Alito, think that racial equality involves keeping your mouth shut while majorities do whatever they want.

The conservatives have the votes to overturn one of the most successful weapons against racism in this country, and I can’t say I’m really surprised that conservatives are eager to take this away.

But is anybody else getting a little sick and tired of Justice Antonin Scalia’s constant grandstanding? I don’t know if it was getting passed over for Chief Justice or if he’s really pissed he didn’t get to decide who won the 2008 presidential election, but isn’t his whole “conservative intellectual hero” act starting to interfere with his job as “impartial member of the judiciary”?

Scalia has been acting like “Justice Scalia Superstar” for some time now. But I think most people noticed it during his incredibly political dissent in the Arizona immigration case. Remember, that’s where Scalia criticized the president’s funding and enforcement of immigration laws on the books.

Scalia’s also gotten into fights with Judge Richard Posner. And he apparently no longer respects questions about his most famous and controversial decision in Bush v. Gore. Scalia has a great mind and an acerbic wit, but maybe all of that adulation has gone to his head?

Scalia’s political leanings were on full display today during oral arguments on the Voting Rights Act. Talking Points Memo reports on some of the questions — really they were just pontifications — from Scalia today:

Justice Antonin Scalia attributed the continued congressional reauthorization to a perpetual “racial entitlement” and suggested that it will be renewed into “perpetuity” because members of Congress would never let it lapse for fear for political repercussions.

“I don’t think there is anything to gain by any senator by voting against this Act,” Scalia said. “This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”

Look, I think there are legitimate questions one can raise about pre-clearance. Roberts, for instance, asked, “Is it the government’s submission that citizens in the South are more racist than citizens not in the South?” Now, the obvious answer to that is yes (yes folks, they are, we have evidence), and I think Roberts’s desire to live in a world magically devoid of racist Southerners outpaces the reality on the ground. But whether or not the South is too racist to be trusted is a legitimate line of inquiry in this case.

Scalia’s soliloquy about perpetual racial entitlement is not.

In fact, Scalia’s suggestion that caring about voting rights in the South (where people have been murdered trying to register minorities to vote) is akin to racial entitlement is offensive and, frankly, stupid. Scalia might not believe that conditions in the South currently warrant enhanced federal scrutiny, but the “entitlement” to vote isn’t racial, it’s constitutional.

Honestly, I’m not surprised anymore by rank racial insensitivity from Justice Scalia. That’s his shtick. He’s the freaking Jeselnik Offensive of the Supreme Court.

Actually, it’s the second part of Scalia’s statement that I find most troubling: “This is not the kind of question you can leave to Congress. They’re going to lose votes if they vote against the Voting Rights Act. Even the name is wonderful.”

I know Scalia has forgotten more about the law than I’ve ever even contemplated, but I thought the question wasn’t whether or not Congress could be trusted to vote the way Scalia wants them to, I thought the question was whether Congress acted within its constitutional authority. Oh, they did (according a mountain of precedent)? Then WHO THE F*** ASKED YOU ABOUT THE POLITICAL WILL OF CONGRESSIONAL ACTORS?

Is the Court now empowered to strike down acts of Congress that are named too well? If so, let’s have the Court bring back the “death tax” and finally do something about the comfortable-sounding “global warming.”

Can you imagine how Scalia’s beloved founding, slave-holding fathers would react to a judge pontificating on the political expediency of Congressional actions?

How would Scalia feel if sometime in the future Justice Breyer says, “You can’t leave the gay marriage question to Congress. They’re all too homophobic to be pro-‘gay.’ Even that word ‘gay,’ they’d lose votes for being ‘too gay.'”

I don’t know if people are going to notice this. Conservatives are usually the ones who claim to be worried about an “activist” Court, but they don’t say a peep when the Court overreaches rightward. And liberal Court watchers have been used to Scalia’s originalist hypocrisy since at least Bush v. Gore.

But Justice Scalia seems to have abandoned even the pretense of impartiality or judicial restraint. The Roberts Court has been the era of Scalia Unchained, and I think we’re not even halfway through this movie.

Conservative Justices Hammer The Voting Rights Act [TPM]
Argument recap: Voting law in peril — maybe [SCOTUSblog]

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