A day after Justice Antonin Scalia caused gasps in the Supreme Court gallery by saying the 1965 Voting Rights Act had become a “racial entitlement” no congressperson could vote against, Rachel Maddow told The Daily Show she was in the courtroom and Scalia clearly enjoyed tormenting people. “I think he does know how that sounds,” she said. “He’s a troll. He’s saying this for effect. He knows it’s offensive.”
There’s no shortage of badly behaving Republicans in Washington. There’s the take-or-leave-it congressional leadership, who constantly show they value rightwing ideology more than its impact on people. There are intransigent obstructionists, like the NRA’s Wayne LaPierre, who believes the answer to gun violence is more guns. But Scalia isn’t simply another Republican bully; he may be the most venal and fascist Republican of all.
It’s one thing to be a political bully and enjoy it, as Scalia does. But it’s another to say that the other branches of government are broken because they’re not doing things he agrees with; and then abuse the power of his office to overthrow that governance and perpetuate his legacy. That’s close to how European despots acted before World War II.
Let’s unpack what Scalia said about the 1965 Voting Rights Act with an eye to seeing his method, not just his madness. It is the same backstory to his mocking outbursts over the years, whether telling law school students asking about Bush v. Goreto “get over it,” or arrogantly answering questions put by other justices to lawyers—such as 2008'sHeller case where he coached libertarian lawyers and then wrote the opinion that for the first time in U.S. history said the Second Amendment included a personal right to a handgun at home.
Scalia has long had a visceral hatred of the democratic process. In 2000’s Bush v. Gore, which awarded the presidency to George W. Bush, he could barely contain himself in telling us there was no federal constitutional right to vote for president. He’s said the direct election of U.S. senators (the 17th Amendment) violated state sovereignty. After the Brady Bill created a national system of background checks for gun buyers, he wrote a majority opinion saying states didn’t have to participate in that system.
In all of this, Scalia boasts that he is a constitutional originalist, meaning he wants to see the law interpreted as he believes the founders intended. However, that boast falls apart when one sees that he is by far the most activist and radical of all the Court’s justices. His 2008 opinion expanding Second Amendment rights is a prime example of such revisionism.
The Voting Right Act
Republicans have been targeting the federal Voting Rights Act for years, because in the 16 states where it is law they cannot rig voting rules to give their party an advantage. In 2006, when Congress last reauthorized the law, not one senator voted against it. The House vote was 390-33. In 2012, there were numerous lawsuits involving the VRA, where the Justice Department intervened and won on behalf of minority voters.
The case that came before the Supreme Court last week focused on whether the law’s strongest tool—a section allowing the Justice Department or a Washington appeals court to reject changes in state voting laws—should stand. Republicans had argued that the U.S. had moved into a post-racial period in elections and Section 5 was not needed. Scalia surprised everyone by deepening that argument and essentially contending that Congress did not have the guts to vote against a law that had outgrow its usefulness.
“And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same... 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.”
Scalia’s mention of “racial entitlements” caused the stir in the gallery. He continued:
“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... [T]his is not the kind of a question you can leave to Congress... Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”
Scalia’s statements are outrageous—and dangerous—in so many ways. First, it presumes that only he, and not the Congress, knows what’s best for American democracy. Second, it substitutes his prejudices for facts. Judges are supposed to apply the law to facts and defer to legislative history and intent, not trample it. His arrogance goes beyond mere bullying. It is the temperamant of a dictator.
“That speech, even without the bile—even had it been couched in, ‘What is a judge to do?’ terms—is unimaginably injudicious,” wrote a lawyer in an e-mail to AlterNet who did not want to be named because he appears in federal court.
“Never mind that the 15th Amendment gives Congress unfettered enforcement power with no reference to equal protection—which Scalia didn't even invoke—let alone majority protection. Never mind that those parts of the country that are subject to [the Voting Right Act’s] Section 5 have kept Section 5 enforcement a thriving industry. Forget the racism. Let’s assume Scalia uses the same bathroom as [Justice Clarence] Thomas. Forget that the case fits into the Republican strategy of keeping power under a fake democracy whose elements deny it even a semblance popular support and which wants to move on. Beyond all that it’s jurisprudential evil.”
Scalia seems to be tapping the legal theory that a judge could strike down a law that’s not used and force its re-enactment—if Congress felt it were needed. In this case, however, the provisions under attack in this GOP-led suit against the VRA are very much used. If anything, one could argue that the law should apply to all 50 states. “But notice the difference,” the anonymous lawyer told AlterNet. “Section 5 is a law that is reaffirmed periodically, by increasing majorities, and it is actively and frequently enforced. So the bastard Scalia bastardizes, standing the principle on its head.”
Then, he does it again—twisting more legal reasoning to fit his prejudices. There are famous rulings where the Supreme Court has said that tougher standards should come into play if a court might invalidate a law focused on a “discrete and insular minority.” Here, Scalia said that the congressional majorities that re-enacted the VRA in 2006 was too accomodating of racial minorities. “Here, too, the bastard bastardizes… declaring that when a majority is too solicitous of such a minority—in effect is caught up in the poltical correctness—it’s time for judges to step in and be politically incorrect, and undo the mealy-mouthed politicians.”
This is dangerous stuff. This is not at the same level as the GOP’s politics of obstruction surrounding the federal debt that is now centerstage in Congress. Scalia has the power to rewrite the rules for who participates in American democracy and those decisions could last for decades—until Congress or another Supreme Court majority reverses them.
His past tirades have been extremely damaging. Scalia helped give the White House to George W. Bush by stopping Florida’s 2000 recount. He was the lead voice saying the Second Amendment gives people a right to own a handgun at home, which is where most gun violence occurs. In Citizens United,he said that corporations have the same speech rights as people in certain types of political operations. And now, he wants to unravel voting rights, based on rightwing articles he's read instead of a vast congressional record.
“Put it in the context of all the rest [that] Scalia and men like him have done,” AlterNet’s legal analyst said. “They should just drop the pretense and put on armbands.”