By Gloria J. Browne-Marshall
There was a gasp. Justice Scalia’s shocking words were thick with sarcasm. He said it was merely a “perpetuation of racial entitlement.” This was a sad day for racial justice.
Justice Antonin Scalia has been described as a conservative intellectual by some and ‘Archie Bunker’ in a high back chair by others. He has served the Court since 1986. Yet, this elder member of the U.S. Supreme Justice could not fathom a legitimate reason for continuing voting protections for people color.
The attorneys never asked the meaning of “racial entitlement.” It is not a legal phrase. More likely Justice Scalia created it. An activity usually disparaged by this justice when done by others. His opportune moment to use the phrase came during oral argument in Shelby County v. Holder. Shelby County challenged Section 5 of the Voting Rights Act which requires certain States to seek preclearance, or permission, from the Justice Department before making changes to their voting laws.
The Voting Rights Act rose from a bloody battle for civil rights. The known dead include Medgar Evers, attorney and NAACP voting activist in Mississippi, shot in the back. Viola Liuzzo, Italian American mother from Detroit, killed in Alabama. College students James Chaney, Michael Swerner, and Andrew Goodman killed in Mississippi. Harry and Harriette Moore blown up in their Florida home on Christmas Day. The number of lynched, shot, raped, beaten, or forced to migrate North is unknown.
Political progress began when Black men gained the right to vote with the 15th Amendment in 1870. Congress immediately passed Civil Rights legislation known as the Anti-Ku Klux Klan Act because States would not protect the voting rights of Black citizens.
After several attempts to by-pass this Federal legislation, Louisiana succeeded. The case was Plessy v. Ferguson. In 1896, the U.S. Supreme Court decided States could legally segregate by race. Before that decision 130,344 African Americans were registered to vote in Louisiana. By 1900, that number was 5,320.
Regaining voting rights became a pivotal part of the fight to end segregation. Literacy tests, grand-father clauses, poll taxes, and the criminal justice system disenfranchised people of color.
Charles Hamilton Houston, an African American attorney, literally worked himself to death fighting to overturn Plessy. Houston taught hundreds of Black lawyers, including Thurgood Marshall, how to challenge segregationist laws.
When the Voting Rights Act passed in 1965, even with lives lost, thousands of protests and years of lawsuits and lobbying laid the foundation for it. In 1964, the Constitution outlawed poll taxes. That year Fannie Lou Hamer shamed the Democratic Party on national television speaking of beatings received for registering others to vote.
Political progress began again. The original thirteen African American members of Congressional Black Caucus have grown to the current forty-one African American Representatives and two Senators. An African American President was elected.
Then, a second generation of voter suppression began. Without evidence of voting fraud, government-issued photo identification laws were enacted. Voter rolls were purged. Names disappeared. Polling places were changed. Early voting was challenged. Sunday voting ended. And, there are demands for changes in the Electoral College.
The U.S. Census indicates America’s people of color will outnumber European-Americans. Words like “perpetuation of racial entitlement” imply people of color are receiving too much justice leading to too much progress.
Justice Sonia Sotomayor questioned whether Shelby County was the right party to bring this case, pointing out that Shelby County’s record actually demonstrated the need for continued Section 5 preclearance requirements.
But, this voting case provided Justice Scalia with an opportunity to grandstand against the present administration and Eric Holder, the Attorney General. Justice Scalia remains enraged by the conservatives’ loss in the famous Healthcare case.
Soon after the Healthcare decision, a Republican-controlled House of Representatives charged Mr. Holder with contempt of Congress for his alleged role in a failed gun program begun by a prior U.S. Attorney General. House Minority Leader Nancy Pelosi (D-Calif.) said, “They’re going after Eric Holder because he is supporting measures to overturn these voter suppression initiatives in the states.”
The Voting Rights Act was reauthorized by 390-33 in the House and 98-0 in the Senate, and signed into law by President George W. Bush in 2006. However, Scalia derides this near unanimous vote as evidence of political coercion. Politicians feared voting against it. By that logic when Justice Scalia, a Ronald Reagan nominee, was confirmed by a vote of 98–0, perhaps the Senate was coerced into voting for the first Italian-American nominated to the Court.
Fortunately, striking down Section 5 will not be a deathblow. But, it will undermine progress. Justice Scalia’s vote will probably be based on some assumed mindset of the Framers in 1787. However, given his “racial entitlement” rant, it may read more like an interpretation from ‘Archie Bunker’ via the 1970s.
Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present,” and a legal correspondent covering the U.S. Supreme Court. Twitter: @GBrowneMarshall