JUSTICE SCALIA: The Voting Rights Act Is A 'Racial Entitlement'

Antonin Scalia

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Conservative Supreme Court justices expressed scepticism about the constitutionality of the Voting Rights Act of 1965 during oral arguments today, signaling that a key provision of the landmark civil rights legislation might be struck down.Justice Antonin Scalia sparked controversy when he referred to Section 5 of the law as “the perpetuation of a racial entitlement,” sparking immediate backlash from the left.

Section 5 requires states with a “history of racial discrimination” to have any changes to their voting laws approved by the Justice Department’s civil rights division or Washington, D.C.’s federal court.

Scalia explained that he was not convinced the law was legitimate simply because Congress had voted to reauthorize it five times, most recently in 2006 by a 99-0 Senate vote and similarly overwhelming House vote. He said that the “normal political process” couldn’t be applied to this situation and questioned Congress’ political motives for reauthorization.

“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this,” Scalia said of the VRA’s continued reauthorization, according to the Supreme Court transcript. “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,” he added. “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.”

Later in oral arguments, Justice Sonia Sotomayor directly challenged Scalia’s assertions. She asked Bert Rein, the lawyer for the Alabama county challenging the legislation, if he agreed.

“Do you think that the right to vote is a racial entitlement in Section 5?” she asked him. 

He ducked her question. She asked again, but Rein would not say whether he agreed with Scalia’s comment.

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