Walking the Cat . . .

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Justice Scalia & SCOTUS . . .(W-T-F, Tony?!)

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At the outset, I want to say I had some reservations about posting this here but then I re-read the “About Walking the Cat” page and decided it was as appropriate as any other post I’ve written, so . . .

I am troubled by comments made by Justice Antonin Scalia during oral arguments in a case before the Court regarding certain sections of the Voting Rights Act (VRA).  Justice Scalia’s reference to VRA as “. . .racial entitlement” is appalling on its face, but a larger issue resides in the attitude this comment represents as it relates to the function of the Court.

It was never the intention of the framers of the Constitution that the Supreme Court of the United States (SCOTUS) should be a vehicle for legislation.  It was designed to be a check against “unruly” legislation; to insure those laws passed by Congress comport with the Constitution.  I don’t believe it is within the Court’s purvue to examine the motivations of individual legislators as to why they voted, pro or con, on a particular piece of legislation.  Using such as argument the Court could examine every law enacted by Congress going back to the founding of the country; even to question the very decision to declare independence from England in the first place.

Yet Justice Scalia sees it as his responsibility to do just that.  After labelling VRA as “racial entitlement”, he continues: “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.”

Further along in the argument(s) Justice Scalia reaffirms his belief in the reasons some senators voted to enact (and reenact) VRA.  After noting the existence of “black districts by law” (the results of state’s practice of gerrymandering), he adds, “And even the Virginia Senators, they have no interest in voting against this (VRA) . . .and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.”  

I find this last statement mind-boggling.  Apparently, in Justice Scalia’s mind, senators should not vote for or against bill based on what their constituents think.  Never mind that, in the case of VRA, some of those whose rights are being protected could conceivably be persuaded to vote for them (I know it’s not likely to happen, especially for conservative senators, but it’s conceivable).  Senators (and Congressmen, too) always take into consideration what their constituents think about the laws they are expected to vote on (at least they should be thinking about it); if they don’t, they abrogate their responsibility as elected officials and risk being voted out of office by that same constituency (as they should be).

The Voting Rights Act is important legislation and it should be reenacted; not only because it protects the rights of blacks (for whom it was enacted in 1965), but because it protects the rights of all of us.  In 2011, seven states, all of which were (and still are) controlled by Republicans, attempted to establish restrictive voter ID laws in an effort to block (or at least restrict) those voters (not only blacks, but Hispanic, the poor, the elderly) they felt likely to vote for “the other guy”.  Those efforts were blocked by the Justice Department, in two states, under Section 2 of VRA.  The Voting Rights Act is vibrant and necessary legislation; as much now as it was when first enacted in 1965.

If Justice Scalia wishes to determine the constitutionality of law based on his assessment of the motivation(s) of lawmakers; whether or not their motivation was sufficient to warrant a vote for passage of a given piece of legislation, he should, perhaps, retire from the bench and take up psychology.


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