Sunday, March 3, 2013

The Perverse, Anti-democratic Logic of Antonin Scalia

This past week, the Supreme Court heard arguments on the Voting Rights Act. The nearly 50 year old landmark legislation is under challenge by those who claim that its work is effectively done. The challengers argue there is no need for states (and other areas) with a history of discriminatory tactics to be under any special burden to show that proposed changes in voting practices will not be discriminatory.

Some of the "questions" from Justices John Roberts and Antonin Scalia have received a lot of attention: Roberts for falsely claiming that Massachusetts had the worst record of racial disparity in voter registration, and Scalia for despicably calling the continuation of the current provisions of the Voting Rights Act the "perpetuation of a racial entitlement."

Scalai made another less obviously loathesome, but just as disturbing, statement. With stunning arrogance, he claimed that the unanimous vote in the Senate in 2006 to reauthorize the act is precisely why it needs to be ruled unconstutional. Pointing to the widespread support for the law, he said: "Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this." (It never seems to occur to him that we might have a political consensus that we need it.)

Scalia evidently not only believes that he has the ability to read the minds of the Framers of the Constitution, but also believes he can read the minds of today's legislators. Those 98 senators (and by extension the 390 members of the House) who voted for it did so not out of conviction, but because there was no benefit in voting against it: "I don’t think there is anything to be gained by any Senator to vote against continuation of this act."

What a bizarre argument: the Court must step in and rule the law unconstitutional because Congress won't vote against it. The law, it seems, is too popular, and that's why it needs to go.

As I've written before, Scalia does not make a constitutional argument: he decides on a politically preferable outcome and figures out how to achieve that result, with no concern for consistency or principle.

What is particularly sickening about Scalia's approach to this question is that, on a superficial level, it echoes the arguments for Court decisions in civil rights cases like Brown v. Board of Education. Because local and state governments had systematically disenfranchised black voters, the political process in those places had in fact become a "racial entitlement"--for whites. That made it impossible for the political system to produce a just and constitutional outcome because that local political consensus (among whites) effectively prohibited political participation by black members of the community. As long as that was true, there was no "benefit" to legislators to vote to end Jim Crow. It was thus necessary for the Court to step in and rectify that situation by ruling against segregation.

Scalia, in what strikes me as a disgustingly cynical inversion, now argues that our current mechanism for insuring the right to vote is a similar flaw in our system: it creates, Lord help us, a situation in which elected representatives see no advantage in opposing the means of insuring the right to vote. 

That is exactly what it was meant to do. A well-functioning democracy requires that its citizens have equal access to the ballot box. When all members of society have that access, they can protect their own rights through the democratic process. That was the purpose of the Voting Rights Act--and that result is what Scalia finds objectionable.

Yes, Justice Scalia, no senator sees benefit in voting against legislation that protects the most basic right of a citizen in a democracy. But no, it is not a problem. It is a solution.

That Scalia equates the evidence of the effectiveness of the Voting Rights Act with the evidence of the effectiveness of Jim Crow tells us all we need to know about his approach to this question. That a member of the Court today could espouse such views is evidence of how far we still have to go to achieve the "color-blind" society Scalia would like to pretend we've already achieved.

No comments:

Post a Comment