By Brad Friedman on 3/1/2013, 6:05am PT  

Supreme Court Justice Antonin Scalia's obnoxious remark Wednesday about the Voting Rights Act as a "perpetuation of racial entitlement" wasn't the half of it.

Scalia is often held up by self-described "conservatives" as a model jurist, setting the standard for the type of "strict constructionism" or "originalist" interpretation of the Constitution that Republicans would like to see more of on the bench.

Jurists like Scalia, the pretend argument goes, are the antidote to those "liberal activist judges" who don't appreciate the limited authority of the judicial branch and who abuse their position in order to usurp the power of the executive and/or legislative branches by --- gasp! --- "legislating from the bench!"

Wednesday's shameful display by Scalia, however, during the Shelby v. Holder hearing at the U.S. Supreme Court, on whether or not Section 5 of the Voting Rights Act (VRA) ought to be discontinued, should serve to put the bald hypocrisy of that entire Republican myth to bed for good. The Supreme Court Justice beloved by the hard right demonstrated exactly why that hard right loves him --- and it has nothing to do with "conservatism" or "judicial restraint" or "strict constructionism" or any of those other absurd partisan talking points bandied about in regard to Scalia...

The case out of Shelby County, AL was brought before SCOTUS by wealthy Rightwing activists who hope to use it to finally gut the section of the VRA which requires all or parts of 16 states, predominantly in the South, largely due to their long history of racial discrimination, to receive preclearance for all new election-related laws from either a federal court or the U.S. Dept. of Justice before they can be put into practice.

Section 5 is part of a nearly 50-year old bi-partisan bill that almost all observers, Right, Left and otherwise, see as a smashing success to date. Even the bulk of those on today's Supreme Court who now oppose all or parts of the Act, recognize that it has been the cornerstone of civil rights law in this country for half a century and has done a remarkable job of restoring equal justice for many after the long and insidious evils of slavery and the more than a century of racism and disenfranchisement that followed it.

So popular is this law that when it was most recently re-authorized for another 25 years in 2006, it was supported 98 to 0 --- 98 to 0! --- in the U.S. Senate, after a 10 month process of hearings and deliberation in the U.S. House as led by the Republican chairman of the House Judiciary Committee.

So there was a loud chorus of gasps, literal and otherwise, in the wake of Scalia's offensive and inaccurate remark during Wednesday's hearing when he charged that the Voting Rights Act, presumably Section 5 specifically, but he was speaking of the bill in its entirety at the time, served as little more than a "perpetuation of racial entitlement."

Offensive and inaccurate as that comment on its own might have been, there was much --- much --- more wrong with his commentary, almost all of which serves to absolutely destroy the notion that Scalia represents the type of jurisprudence that either he or his supporters claim.

So a) please bookmark this item for use next time you hear someone on the Right parroting phony talking points about "liberal activist judges" who "legislate from the bench" and b) let's look at Scalia's comments around this point in full below, so we can unpack a few points that underscore just exactly how radical and non-conservative and non-strict constructionist and non-originalist this hard right judicial activist actually is.

In this clip from the full transcript [PDF], Scalia is seen attempting to use his lifetime position on the judiciary to usurp both the legislative and executive branches in his quest to dismantle the VRA by legislating from the bench...

JUSTICE SCALIA: ...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: The Voting Rights Act. Who is going to vote against that in the future?

Okay. So let's unpack just some of that.

Scalia is referring to the four times that the VRA --- originally written to include a five-year sunset provision on some of its provisions --- has been re-authorized by Congress since its original passage in 1965. The Act was re-approved, with various tweaks each time, for five years in 1970, for seven years in 1975, for 25 years in 1982 and again for another 25 years in 2006.

Each re-authorization was signed by a Republican President and each time it's been voted on, it has received fewer and fewer votes against it than the time before. Finally, in 2006, following 10 months of deliberation, 21 hearings and some 15,000 pages of evidence compiled to determine the necessity of re-authorizing the VRA, it passed by an astonishing 98 to 0 margin in the U.S. Senate.

The signing of the 2006 re-authorization by George W. Bush was held outdoors at the White House, with Congressional leadership and many members of both parties attending in what was a loud, proud --- perhaps the only proud --- moment during the entire Bush Administration.

For once, Congress managed to do its job and do it well. As the Republican Chair of the U.S. House Judiciary Committee at the time, James Sensenbrenner (who we may never have agreed with on anything else) recently said about the due diligence of the legislative branch before the 2006 renewal of the VRA, it was "one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the twenty-seven and a half years that I have [served]."

And yet, somehow, in Scalia's twisted reasoning, the bill's passage under those circumstances, by a unanimous margin in the U.S. Senate, and a nearly as broad margin in the U.S. House, is evidence that the bill's key provision should be struck down by the judicial branch.

So much for the separation of powers contemplated by the U.S. Constitution and by those like Scalia who pretend to be "conservatives".

Scalia's theory --- if he actually has one here, other than little more than a megalomaniacal quest for personal and judicial overreach --- seems to be that members of Congress are simply too frightened of reprisal to vote against the VRA. Even, apparently, the Senators from the states which are covered by Section 5. Several of those states have since joined Shelby in opposing Section 5, but never mind that. For some reason, they still need Scalia's extra help to extricate themselves from it all.

As UC Irvine election law professor Rick Hasen observes: "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."

Scalia also added in his rant: "And even the Virginia Senators, they have no interest in voting against this."

What does that mean? Virginia is one of the covered jurisdictions --- except for 24 counties and six cities in the state, most of which have managed to avail themselves of Section 5's bailout provision, allowing for jurisdictions without violations of the Act for a number of years to become exempt from required preclearance. Is Scalia suggesting that Senators from the home state of Robert E. Lee are somehow too frightened of being called racists to vote against the VRA? So they need the courts to rescue them from the hellish nightmare of not discriminating in their election laws (versus simply using the bailout procedure to get out)? Who knows?

Next, and perhaps most damningly, Scalia has the temerity --- and "strict constructionism" hypocrisy --- to charge that this matter is "not the kind of a question you can leave to Congress."

Well, that's funny, because the 15th Amendment, ratified in 1870, which the VRA of 1965 was finally passed to enforce 95 years later, specifically calls for exactly that. It expressly reads that this is a matter for Congress to determine --- not the states and not the courts. Here's the 15th, in its entirety [emphasis added for aging, hypocritical Supreme Court judicial activists]:

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.

Is there anything unclear about that? A conservative, strict-constructionist reading of the second section of the 15th Amendment seems pretty easy to understand, even for someone who isn't a Constitutional scholar or, say, a Supreme Court Justice with a lifetime appointment to the bench. Though, perhaps a wildly liberal interpretation of the phrase "The Congress shall have the power to enforce this article" could magically be construed as the exact opposite, to be read as "this is not the kind of a question you can leave to Congress."

As Elie Mystal of Above the Law noted:

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.

We hope Mystal is wrong. We fear she is not. What has yet to be destroyed of our electoral democracy following the work of Scalia and friends in Citizens United is now on the chopping block in Shelby, and it doesn't look promising.

But setting aside whether one agrees or disagrees with Scalia's legal opinions or political policies or partisan preferences on any particular issue, his untethered rant during the hearing on Shelby should once and for all destroy the ridiculous pretense that this man is now anything but a wild-eyed radical. He is certainly anything but an "originalist" or a "strict constructionist" or a "conservative". Scalia is plainly a radical judicial activist, legislating from the bench on one of the most central and vital issues to our entire system of governance in this nation.

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Article Categories: Election Reform, Rights And Freedoms, U.S. Constitution, Accountability, U.S. Supreme Court, Antonin Scalia, Voting Rights Act