More On Scalia And The Voting Rights Act

Ken AshfordCongress, Constitution, Courts/Law, Supreme Court2 Comments

From TPM:

In expressing his deep skepticism Wednesday for the constitutionality of a centerpiece of the Voting Rights Act, Justice Antonin Scalia questioned the motivations of Congress for repeatedly reauthorizing it since it was initially passed in 1965.

I don’t think there is anything to be gained by any Senator to vote against continuation of this act,” Scalia said during oral arguments in Shelby County v. Holder. “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?

At issue was the constitutionality of Section 5 of the 1965 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 prior to enacting them.

Congress has renewed the law four times, most recently in 2006 for a period of 25 years. The margin of victory was 99-0 in the Senate and 390-33 in the House.

Scalia attributed the repeated renewal of Section 5 to a “perpetuation of racial entitlement.” He said, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”


Scalia signaled that he fears Section 5 will be repeatedly reauthorized into perpetuity, regardless of whether it’s justified, unless the courts step in.

“This is not the kind of question you can leave to Congress,” he said.

So…,. Justice Scalia thinks it is bad for Senators to vote against the Voting Rights Act; they'll look bad.  And apparently, he's coming to the rescue.

I'm absolutely appalled by this.  He's a judge; not a political commentator.  His job is to follow the law, not speculate about why a Senator may or may not vote for it.  This IS the kind of question you leave to Congress, and for whatever reason, they have voted overwhelmingly to renew the Voting Rights Act.  Political pressure?  So be it.  Judges are not supposed to usurp the political process.

Can you imagine of judges started ignoring the law, or overturning laws, simply on the rationale that "senators don't really want to vote for this law — they just felt compelled to satisfy their constituents"?  Yes!  It's the people that are supposed to be at the heart of democracy.  Not judges.

Maybe this is a better way to put it:

Compare and contrast.

1. Justice Scalia today regarding the voting rights act: "This is not the kind of question you can leave to Congress."

2. The United States Constitution, Amendment XV: "SECTION 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation." (My emphasis.)