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Scalia Calls Voting Rights Act Protections Just a “Perpetuation of Racial Entitlement”


voting Rights Act Photo

In landmark testimony yesterday, our ostensibly corporate-owned Supreme Court debated the need for certain aspects of the Voting Rights Act. The arguments being heard relate to whether or not Provision 5 of the Voting Rights Act should remain intact. Provision 5, the enforcement teeth of the Voter Rights Act, was added after ratification to better regulate states who  violated the law and persisted in voter discrimination.

Supreme Court Justice Scalia

During the testimony, the acrid Justice Scalia provided out of touch, fundamentally offensive, Jim Crow-esque  comments on the provision. Though congress continues to find ample justification for the law, Scalia bizarrely suggested that the provision is somehow a remnant of “racial entitlement”. In response to Scalia’s curious comments, Justice Sotomayor called out her colleague’s remarks when she asked the poignant question:

“Do you think that the right to vote is a racial entitlement in Section 5?”


Voting is a Right, Not an Entitlement


The message from Justice Sotomayor was clear — even if a provision protects a race or a minority group, ensuring voter rights is not an entitlement — voting is a right!

It seems a particularly egregious moment in time for such uninformed rhetoric and ignorant discourse to transpire in the Supreme Court, especially in the wake of rampant voter suppression legislation. It is notable that so many of the recent voter id laws have been specifically directed at disenfranchising poor, elderly and minority citizens. Is it not apparent that these types of legal voting rights protections desperately need to be expanded, rather than eliminated?



Here is a brief excerpt from this week’s Supreme Court Hearing transcript:

JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But that’s — that’s a problem that I have. This Court doesn’t like to get involved in — in racial questions such as this one. It’s something that can be left — left to Congress.

The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.

Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same.

Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes…

Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?

Later, Justice Sotomayor responded to Scalia’s delusional remarks with a powerfully direct reality smackdown:

JUSTICE SOTOMAYOR: Do you think that the right to vote is a racial entitlement in Section 5?

MR. REIN: No. The Fifteenth Amendment protects the right of all to vote and -­

JUSTICE SOTOMAYOR: I asked a different question. Do you think Section 5 was voted for because it was a racial entitlement?

MR. REIN: Well, Congress -­

JUSTICE SOTOMAYOR: Do you think there was no basis to find that –­

MR. REIN: — was reacting — may I say Congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions. So to that extent, as the intervener said, yes, it was intended to protect those who had been discriminated against. If I might say, I think that…

JUSTICE SOTOMAYOR: Do you think that racial discrimination in voting has ended, that there is none anywhere?

MR. REIN: I think that the world is not perfect. No one — we are not arguing perfectibility. We are saying that there is no evidence that the jurisdictions that are called out by the formula are the places which are uniquely subject to that kind of problem -­

JUSTICE SOTOMAYOR: But shouldn’t -­

MR. REIN: We are not trying -­

JUSTICE SOTOMAYOR: You’ve given me some statistics that Alabama hasn’t, but there are others that are very compelling that it has. Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?

MR. REIN: May I answer that? Number one, we are not looking at Alabama in isolation. We are looking at Alabama relative to other sovereign States. And coming to Justice Kennedy’s point, the question has is Alabama, even in isolation, and those other States reached the point where they ought to be given a chance, subject to Section 2, subject to cases brought directly under the Fifteenth Amendment, to exercise their sovereignty -­

Judge Scalia Photo by AttributionSome rights reserved by The Higgs Boson