I was struck by this statement from Justice Scalia today at the oral argument in the Shelby County case:
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.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.
Even the name of it is wonderful: TheVoting Rights Act. Who is going to vote against that in the future?
I’m going to put aside Justice Scalia’s provocative comment about racial entitlements, which is getting a lot of attention. Rather, I want to focus on his idea that judicial involvement is necessary here because normal political processes are not working. This is a very familiar argument for judicial review (often associated with footnote 4 of Carolene Products, and with the work of John Hart Ely), that sometimes the political process is stuck and courts need to intervene to protect “discrete and insular minorities.” The Court needed to get involved in redistricting, and impose the one person, one vote rule, for example, because gerrymandered legislatures would not fix the reapportionment problem themselves.
It is one thing to talk about whether a particular group (say gay Americans, to take an example currently also before the court) need extra protection from the courts, necessitating a more searching standard of review. But it is hard to claim that states need extra protection. States can spend massive resources lobbying in Congress, and should have an exceptionally receptive ear from the state’s Senators and congressional delegation. If state leaders in covered jurisdictions tried to do this in 2006, I was unaware of it.
It may be true that in 2006 state leaders made a calculation that going against the VRA would be a losing political issue, but that’s not the same thing as saying that states were powerless to get protection through the normal political processes. State leaders in covered jurisdictions made a choice—and likely not the same choice they’d make today. (There’s been a sea change in attitudes toward section 5, driven in large part on having a Democratic DOJ in place during the last round of redistricting and at the height of the voting wars).
Is Justice Scalia claiming that states are powerless in other arenas? Or is he saying that the fear of being labeled racist stops the political process in its tracks, and prevents states from protecting themselves. Either way it seems a pretty flimsy argument to support extra judicial protection for some of the most powerful actors in the political scene.
UPDATE: Max Bauer points out an interesting contrast with Justice Scalia’s position in yesterday’s privacy decision. “It’s ironic that Scalia, a day after joining an opinion saying there was no need to review one law that was politically-difficult for anyone in Congress to vote against, now takes the opposite approach today.”