Fleshing it Out

Snapshots of Our Political Pathology

The Most Shocking of Scalia’s “Voting Rights Act” Remarks


Of the various remarks Justice Scalia made during the recent Supreme Court hearing on the Voting Rights Act, the one that drew the most fire from people who care about justice more than Scalia appears to was his scornful characterization of the law as a perpetuation of a “racial entitlement.

That was not only offensive morally, but also defective in intellectual terms. There’s nothing preferential about the VRA. On the contrary, its intent is to assure that members of a minority group –that has historically been deprived of their rights– are not cheated of those fundamental rights of citizenship by the dominant majority group.

Rachel Maddow’s much-quoted response to this offensive remark deserves to be quoted again:

He’s a troll. He’s saying this for effect. He knows it’s offensive and he knows he’s going to get a gasp from the courtroom…He’s like the guy on your blog comment thread who is using the n-word. … He’s that kind of guy!

But there was something else in Scalia’s remarks that unmasked Injustice Scalia still more: the dismissive manner in which Scalia dealt with the judgment that Congress has made, repeatedly, and as recently as 2006, by a vote of 98-0, declaring that this law, which Scalia evidently wants to strike down, remains necessary.

Justice Kagan reminded the Court:

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”

Scalia then chimed in:

‘Or decided that perhaps they’d better not vote against, that there’s …none of their interests in voting against it.

Scalia later added:

I don’t think there is anything to be gained by any senator to vote against continuation of this act. … They are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?

Not only is this contemptuous dismissal of Congress unsustainable in terms of reason and facts –after all, we know that political figures these days go around passing voting laws to suppress minority voting, so one would hardly expect that political calculation alone would explain a unanimous vote– but it exposes the utter hypocrisy of this supposedly high-powered, supposedly conservative, supposedly strict constructionist judge.

If Scalia thinks his point –even if it were valid– has any relevance to the role the Supreme Court is supposed to play, if he thinks that it’s up to the unelected judges to replace the judgment of elected officials in the making of constitutionally permissible laws, I would like to see this hypocritical “strict constructionist” show me where in the Constitution it says so.

Where do the Framers indicate that they don’t want the democracy they’ve set up to be responsive to the desires of the electorate?

As one commentator says, this injudicious judicial conduct may not be considered grounds for impeachment, but it should be. A Supreme Court judge who apparently has no respect for anything above his own opinions, or prejudices, is a menace to the nation.

8 thoughts on “The Most Shocking of Scalia’s “Voting Rights Act” Remarks

  1. Richard H. Randall

    Scalia’s “Originalist” philosophy claims that interpretations must always be what the original writers of the Constitution meant in 1789. He proudly says that the Consitiution is dead, as opposed to the “Living Constitution” theory which most intellignet and moral people believe. His theory really doensn’t work of course-except for bigots, ignorance lovers and today’s conservatives who cannot abide real appeals to moral and historical facts and events. Hence, the reality of voting infringement means nothing to him:
    only his racial prejudice matters, and of course, if he wants to stay consistent, voting was a very narrowly granted right in the beginnings of our land.
    Another contribution of the Bush family to the malevonece toward democracy in America.


    1. Andrew Bard Schmookler Post author

      I don’t agree with the originalist position, but it is at least one that’s deserving of respect. I’ve wrestled with these kind of constitutional issues for a long time, and I must say that there are some problems, or at least tough challenges, about that “living Constitution” position, which I support. I do think there’s a need for some people in the system who keep an anchor for us to be true to what our Founders thought we were agreeing to.

      The problem with Scalia is that he’s a hypocrite. Again and again, he plays fast and loose with the Constitution when it suits his purposes. He has no trouble, for example, using the idea that corporations are persons, though it’s not in the Constitution, and is indeed a misreading of what the Court was agreeing to say back in the 1870s. Gee, even corporations are not made by the Constitution into what they were enabled to become by people using the Constitution creatively, as John Marshall did in the Dartmouth Case in 1819, when he made the contract clause (if I recall) into something that safeguarded the growth of the power of private corporations.

      Scalia is a hypocrite. He pretends to have principles, and gets up on his high horse. But with regard to his principles, he’s opportunistic. He trumpets them when they help protect the interests he’s there to fight for. And he’ll violate them when those interests find they get in their way.

      He has no respect for the Constitution, and he doesn’t give a damn for what the Framers would say if they were looking over his shoulder. The principles are intermittant a fraud, but what is real and constant is working to help those who have the most wealth and power get more wealth and power.

      This is not a good man. This is not a man deserving of the nation’s moral respect.


  2. David R

    Several things about ‘voting’ and about the ‘political’ nature of the Senate:
    First, isn’t Scalia really correct in regards to politically speaking, why would a Senator step out and vote in the Senate for not renewing this act ?

    Nothing to be gained AND someting needlessly to lose. Justice and equity having nothing necessarily to do with that Senate’s vote. That’s one reason we have a Supreme Court ( although there is quite a bit to question the wisdom of this ‘Supreme’ body on other issues).

    A judge should be an independent thinker who can abide by true constitutional principle regardless of the ever changing ‘times’.

    And again, I appreciate any action diminishing the federal ‘policing’ the states
    as it has proved to be neither apolitical nor wise on numerous issues. (Exceptions Noted)

    It was a mistake, probably, that the U S Senate has been turned over to election by popular vote rather than sent up by the individual State Legislatures as was the way in my own earlier years.
    Conservatives naturally believe that the greatest wisdom for maintaining the nation does NOT reside with the average T V and entertainment junkie who ever that might be.
    Not addressing this issue but just a gratis observation.
    It’s interesting that ‘the vote’ is so sacred while the average boob has nothing really to do with the nomination (his/her options at the polls) nor the media coverage which controls his/her perceptions.

    One vote here for Judge Scalia on his comments here . . .


    1. Andrew Bard Schmookler Post author

      Your analysis, David R, and Scalia’s, seems to me without foundation. People are voting all the time for the equivalent of this– take the wholly unnecessary, vote-suppressing voter ID laws, passed despite the clear indication that the problem that they’re supposedly designed to address is very close to completely non-existent.

      The kinds of politicians that are voting for these would surely be able to vote against renewing the VRA section in question.

      But even if they do vote for it for political reasons, that’s how the system is designed. It affords a Supreme Court justice absolutely no right to say that it’s up to him, an unelected and unaccountable judge, to overturn the judgments of actual legislators who have passed a constitutional law. It’s just not his job– which would be an especially important restraint on his legislating from the bench if he actually believed in the doctrine he continually trumpets—the originalist, which is in complete opposition to such judicial activism.


  3. David R

    (not the subject tf the thread, but since it is mentioned:
    We have to have I D for almost every inportant thing we participate in – and often asked for two forms of I D. If the vote is to be so significant, why would not any competent voter not obtain valid I D if they want to feel they are participating in directing the affairs of their community and nation ?

    Of course if a Party wants to herd incompetents and the unqualified to the polls, I would think the I D requirement is really anathema. Ho ! ho !~


    1. Andrew Bard Schmookler Post author

      It seems, David R., that you are willing to add obstacles to citizens voting –despite the fact that there’s virtually no problem of voter fraud– in order to keep the “incompetent” from exercising their legal right to vote.

      What if it could be shown to you that the real purpose of these voter ID laws is to have fewer people vote for the party that’s the competition to the party that’s passing the laws.

      Not a matter of protecting the integrity of the voting process, but rather an effort to reduce the rate of participation by people who tend to vote Democratic?

      I’m virtually certain that’s what these laws are about, and I think that there’s little question that what guides Scalia is not principle but serving the interests of the richest and most powerful at the expense of the people who have least of wealth and power.


  4. David R

    It shuld NOT keep anyt qua;ified conscientious citizen from voitin. There is ample time between elections for any committed c itizen to obtain proper I D.

    Now if there is a way to make it more convenioent for the truly qualified to obtain LEGITIMATE I D, I am for that even at additional expense. But as a Conservative/Independent ( NOT Republican), trashing the concept of legitimately qualified/verified does NOT compute.
    Regardless of the motives of some in pushing the voter I D requirement, it is NOT mine. Regardless of motives, there is nothing wrong with the requirement
    but the means for obtaining I D shoulod be simple but everything verifiable if we are to accept the notion that the vote is sinoificant citizen participation in effecting government for us all.


    1. Andrew Bard Schmookler Post author

      I feel that you’re not getting two of the essential facts of the situation, David R.

      First, you say that “it should NOT keep any qualified conscientious citizen from voting.” Well, if I’m not mistaken, the reality is, according to studies, that it will have the effect of keeping people who are citizens with a right to vote from voting. You or I may not like that reality, and it would not keep you or I from voting, but that’s said to be the reality. When the legislature in Pennsylvania passed its law, a legislator was videoed declaring that they’d won the state for Romney. THey calculated that so many hundreds of thousands of people who would have voted –and would have had a right to vote– would not on account of that law. And that was the whole idea.

      Or are you saying that if some people aren’t motivated enough, or are otherwise deterred from getting such ID, then they don’t deserve to vote. Sort of a literacy test, like they used to give in the South to keep black people from voting. Or a poll tax, to keep poor (i.e. especially black) people from voting. Now they’ve got this obstacle.

      And it seems that you don’t get the second point, which is that there the notion of this “voter fraud” business is itself a fraud. Even the Supreme Court said there was no problem, even as it upheld –with a very split vote, I believe– the voter ID law in Indiana, whose purpose was to put an unnecessary barrier in the way of groups of people who tend to vote Democratic.

      If there’s no problem being solved, and if the consequence is to suppress the voting of people who have every legal right to vote, then what justification is there for such a measure that warrants any respect whatever?


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