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Why Scalia's 'Racial Entitlement' Quote Is Even Scarier Than You Think

US Politics & Gov't  (tags: abuse, americans, constitution, dishonesty, elections, ethics, freedoms, Govtfearmongering, lies, politics, propaganda, republicans, SupremeCourt, Voting Rights )

- 1904 days ago -
If the justice were looking to confirm every suspicion that conservative opposition to the law that broke the back of Jim Crow voter exclusions is rooted in white racial resentment, he could hardly have picked a better way to do so.

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Kit B (276)
Saturday March 2, 2013, 8:15 pm
Scalia photo from Think Progress

Justice Antonin Scalia quite deservedly came under fire yesterday for his claim that a key provision of the Voting Rights Act is a “perpetuation of racial entitlement.” If the justice were looking to confirm every suspicion that conservative opposition to the law that broke the back of Jim Crow voter exclusions is rooted in white racial resentment, he could hardly have picked a better way to do so.

Viewed in context, however, Scalia’s quote is actually even more disturbing than the initial headlines suggested. Beyond whatever resentments Justice Scalia may hold, his “racial entitlements” statement was also part of a broader theory about the proper role of judges in society. And if that theory were taken seriously by a majority of the justices, it would potentially undermine Medicare, Social Security and countless other programs. According to Scalia:

"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. You have to show, when you are treating different States differently, that there’s a good reason for it.

That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act."

As Scott Lemieux points out, this theory resembles some of the reasoning behind an 1883 decision which struck down an early precursor to the 1964 Civil Rights Act that banned many forms of segregation by private business. But the roots of Scalia’s legal theory are probably several decades more recent than the late Nineteenth Century.

A major reason why U.S. constitutional law is difficult and American judges are powerful is that the Constitution is not a particularly precise document. The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” but it provides absolutely no guidance whatsoever on what those other rights could be. The Fourteenth Amendment prohibits states from abridging the “privileges or immunities of citizens of the United States” and it prevents the loss of life, liberty or property “without due process of law.” What are the “privileges or immunities” protected by the Constitution? The Constitution doesn’t say! And the Supreme Court’s answer to this question is rather ridiculous.

Because the Constitution is so imprecisely drafted, judges have at times wielded it as a tool to impose their own policy preferences on the law. After all, nothing in the Constitution doesn’t say that the word “liberty” means the liberty to work in a grueling job that literally tears your lungs apart from the inside without the benefit of workplace safety laws or other basic labor protections. Indeed, that was more or less the holding of the Supreme Court’s 1905 opinion in Lochner v. New York.

Beginning in the 1930s, the Supreme Court more or less came to terms with the fact that judges were fabricating imaginary constitutional restrictions, and that this was a bad thing. Indeed, probably the most important question addressed by Twentieth Century constitutional law and scholarship was how to reconcile the legitimate need for judges to police the boundaries of liberty with the fact that the Constitution provides them with little guidance on how to do so. An unelected Supreme Court had recently engaged in overreach that harmed the most vulnerable Americans and struck down laws enacted by elected representatives in the process, and this situation was untenable. But a Court that simply gave Congress free reign to engage in racism or sexism or to toss people in jail for no reason would be equally intolerable.

One of the best, and most influential answers to this dilemma came in a 1938 case called United States v. Carolene Products. Carolene Products suggested that judges should step into the breach when a law “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation.” Thus, when lawmakers enact “restrictions upon the right to vote,” limit the ready availability of information to voters, or restrict political organizing, judges must remedy the situation. Carolene Products also provides that judges must enforce the Bill of Rights and other explicit constitutional protections, and that it must prevent discrimination against certain minority groups, but in most circumstances we are governed by democratically elected representatives and judges should defer to officials who can actually be voted out of office.

When Scalia uses the term “racial entitlement” he appears to be referring to the kind of law that entrenches itself because lawmakers are too afraid to vote against it for fear of being accused of racially improper motives. As Scalia puts it, “[w]henever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” In other words, Scalia believes that the Voting Rights Act somehow “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” and thus it is his job as a judge to strike it down.

This is a disturbing idea for many reasons, but one of the biggest ones is that its logic could extend well beyond the Voting Rights Act. There is a common belief among conservatives that welfare programs by their very nature lead to the kind of so-called breakdown of democracy that Scalia finds objectionable in the Voting Rights Act case. Indeed, the most famous articulation of this view was Mitt Romney’s 47 percent remark: “those that are dependent on government and those that think government’s job is to redistribute — I’m not going to get them.” In essence, Romney warned that as the government creates welfare programs, this transforms welfare recipients into a constituency for those programs. And eventually that constituency becomes so large that it is impossible for a lawmaker to repeal those programs, or for people who oppose those programs to get elected.

To be sure, Scalia has never explicitly endorsed Romney’s view of welfare — although I’d be willing to make a $10,000 bet that he agrees with Romney. But it’s not hard to predict how a judge who agrees with both Romney’s view of welfare and Scalia’s view of when judges must destroy democracy in order to save it would react to the modern welfare state. With his racial entitlement comment, Scalia offered a constitutional theory that would allow movement conservatives to strike down the entire American safety net.

The irony in all this is that Scalia used to be one of the most articulate spokespeople for why judges should not strike down laws unless the Constitution’s text explicitly instructs them to do so. Just last year he denounced Roe v. Wade specifically because he does not believe that supporters of Roe “stick to the text” of the Constitution. Whatever the virtues of Roe, Scalia appears perfectly willing to abandon his rigid textualism when it comes time to strike down a law he personally disapproves of. I’ve read the Constitution many times, but I’ve never found a ban on what Scalia calls “racial entitlements.”

By Ian Millhiser | Think Progress |

Jae A (316)
Saturday March 2, 2013, 10:38 pm
.....Scalla ...a life sentence for the nation. We really need term limits for these partisan Justices. Saying any more would probably have the swear word cops turning red faced by mine.........

Kit B (276)
Sunday March 3, 2013, 9:04 am

Me thinks Scalia betrays his own deeply ingrained racism by these comments. This is most certainly not the sort of justice we hold as a ideal for all people of the United States, nor a protection of the most elemental of all Constitutional rights - the Right to vote.

pam w (139)
Sunday March 3, 2013, 9:34 am
He speaks in code, doesn't he? SCARY MAN!

Kit B (276)
Sunday March 3, 2013, 10:12 am

The oldest code in the American language, and it has become acceptable to speak of those "others" as being "taken care of" and therefore dependent. Such utter disregard of the basic tenets of humanity should be held in with no esteem nor respect.

Angelika R (143)
Sunday March 3, 2013, 10:20 am
Right of hand I am not well informed if this troll would be next in line to retire? I know that SOME are during Obama's second term and I can only hope he'll be one of them to be replaced by someone with a functioning mind and heart! Thx Kit!

J. William Hays (1)
Sunday March 3, 2013, 10:32 am
It's not likely he'll retire anytime soon.

. (0)
Sunday March 3, 2013, 10:51 am
This is even better than a tenured professor. Every judge should be required by law to be responsible under the law just as any common citizen and serve no more than a predetermined number of years. The same should apply for the Senate and Congress.
If Constitutional Reform means examining; editing and rewriting the laws under it to be applicable to our modern age then I'm all for it. That excludes of course corporations being treated as an individual person without any responsibilities to the state/federal infrastructure; welfare or culpability under the laws of the land. If you want to be treated like a person then act like one. These corporations and the politicians and judges they hold in thrall should not be above the law of the land.

Angelika R (143)
Sunday March 3, 2013, 10:51 am
Such issues would be in the responsibility of our Federal Constitutional Court whose judges have a limited term of 12 years. Similarly to your SCOTUS our Federal Supreme Court also has unlimit terms for its judges.

Gene J (290)
Sunday March 3, 2013, 11:33 am
"Because the Constitution is so imprecisely drafted, judges have at times wielded it as a tool to impose their own policy preferences on the law. After all, nothing in the Constitution doesn’t say that the word “liberty” means the liberty to work in a grueling job that literally tears your lungs apart from the inside without the benefit of workplace safety laws or other basic labor protections."

I disagree with this statement. I don't believe the constitution was crafted imprecisely at all. I believe the founding fathers were NOT strict constructionists, they were creating a constitution to stand the test of time, which meant they had to leave language in many ways, imprecise, precisely so that the constitution could be interpreted and applied in times and conditions that they could not possibly see coming. This is why they included a process for amending it, because they meant it to be a living document and knew that would sometimes require changing it to match the times and the custom changes they knew were coming. They didn't build a document to last for a decade but for perpetuity.

Scalia, is in my judgment, the worst Justice we have ever had and I am not fond of many of them, but this man violates Judicial Ethics EVERY time he goes out and makes a speech like this about issue that may come before him on the Court. NO judge is EVER supposed to comment on current issues in a way that signals to some what he/she might decide should a suit be filed. That violates every legal principle of objectivity he swore an oath to uphold. He SHOULD be impeached, he is not objective, he had already decided issues and SAID so, that have yet to come before him. He has as much as told people to file suits in areas he wants to impose his will on. That is despicable behavior for anyone, but especially so for a member of the branch of government which is supposed to be impartial, objective arbiters. He is neither and why no real movement to impeach him is underway, I simply do not understand. A judge of a lower court would lose his/her job for doing what Scalia does with impunity. The same judicial standard of ethics should apply to HIM. He should resign or be impeached. Each day he sits on our highest Court is a day void of ethical behavior. No justice ever deserved impeachment more. THAT I would support in every way as much as possible. He does not belong on the bench of our highest court, this man with no ethics and such an unmitigated and openly racist attitude.

Kit B (276)
Sunday March 3, 2013, 11:36 am

There are a number of things in the Constitution, and the Bill of Rights that need some close examination in the light of the 21th century. Really read the second and third amendments some time. Vague is the best that can be said.

Second: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed

Third: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law

Supreme's in office for LIFE? Isn't that a life term for the country?

Fiona O (565)
Sunday March 3, 2013, 1:10 pm
Not many beasties scare me more than Scalia. I don't even like to think about this troll but we do deed to, don't we, Miss Kitty?

jan b (5)
Sunday March 3, 2013, 1:19 pm

While it should have become clear to most Americans by now that five of the justices of the United States Supreme Court are dyed in the wool advocates of plutocracy. What is not as often reported is the inherent radicalism of the conservatives on the court (Kennedy, the swing justice, appears to be a pro-corporate Libertarian.) But none of the justices is more radical than Antonin Scalia.

How radical is Tony Scalia? In his highly political dissent from today’s 5-3 decision striking down three out of four provisions of Arizona’s “papers please” law, Scalia launched into a political tirade, which wandered back into the recesses of American history, to a time (a better time, in Scalia’s imagination) when a state was a sovereign — like a country — that could exclude freed slaves and “Coolies.” Seriously.

jan b (5)
Sunday March 3, 2013, 1:22 pm
Sorry--I didn't mean the decision happened "today". But I just saw this in the Daily Kos and it was such an example of how Scalia doesn't want to live in the modern world.

Birgit W (160)
Sunday March 3, 2013, 1:36 pm
Noted. Thanks

Roxie H (350)
Sunday March 3, 2013, 2:21 pm
UGH i want to slap this SCALEY CREEPY ICKY PERSON SOOOOO BAD!!!!!!!!!! how dare he start picking on my human right the bastard opened up a can of worms...its bad enough my babies have been killed (wolves) and now my tribal family is being attacked by this pathetic nasty smelly repuke state of walkerhell...but now united states is going to let keystone in and let some fat ass attack my beloved human rights friends who have been sitting and holding everyones hands through 20 years while we all been suffering.... this is war!... they have a war movement.... have they not noticed? watch out ladies... shits hitting... you sit tight... shits hitting the fan...believe it

Terrie Williams (798)
Sunday March 3, 2013, 2:26 pm
Term limits for these Fascist Bast***ds is an understatement. Over half of our Supremes are 'Corporatists' AKA Fascists. And they aren't retiring anytime soon. Not going to go on commenting because, like my peep, Jae, I'll get censored by the cuss police. :)

Mitchell D (95)
Sunday March 3, 2013, 2:59 pm
I saw an interview, on Charlie Rose, with Scalia, and the man has no idea how off the wall is his perspective. Who appointed him, Reagan the first Bush?! Scaliia virtually put the 2nd Bush in office, in his first, or maybe it was the 2nd election; both had bogus outcomes. And we are still paying for various ways.
That's why it is ever so important to vote for the Democratic candidate, if for no other reason, in my thinking: you get a Soto_mayor, not a Scalia

laura r (6)
Sunday March 3, 2013, 5:26 pm
Ignorance is bliss until it attempts to destroy human rights.

Joanne Dixon (38)
Sunday March 3, 2013, 8:37 pm
"You have to show, when you are treating different States differently, that there’s a good reason for it." Well, there's a simple way out of that. Require EVERY State to get Federal permission for any changes in its voting procedures. No State is treatd differently. Problem solved.

Louise D (44)
Sunday March 3, 2013, 10:05 pm
Scallia has repeatedly shown he is unfit for office in some many occasions but judging from the weirdness of his comments, it might not be wrong to assume Scalia's true concern is less about "racial entitlement" than it is about making sure that his fellow Republicans are entitled. Entitled, that is, to manipulate elections when they can no longer win fair and square. I really wonder if he wakes up screaming in the night knowing how much suffering has been caused by his constant nit picking of the constitution or the fact like many things he has never really bothered to read it properly.

Winn A (179)
Monday March 4, 2013, 6:00 am
Scallia should retire today.

Gloria p (304)
Monday March 4, 2013, 6:20 am
"Racial entitlements" is one of the creepiest things I have heard from him.

Anna Undebeck (256)
Monday March 4, 2013, 7:42 am
Sicko! Thanks Kit

Roger S (14)
Monday March 4, 2013, 1:17 pm
This article misses what I think is an important part of what Scalia said: "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."
Really? "It's been written about." Where? By who? What proof did they offer? Even if true, why would that be a bad thing, an unconstitutional thing? By the same thinking, should the Supreme Court then also strike down other similar laws such as for Social Security and Medicare as a "senior entitlement", or the Violence Against Women Act as a "female entitlement", or milk subsidies as a "dairy entitlement"?

I do agree with one thing he said, "You have to show, when you are treating different States differently, that there’s a good reason for it." I think all 50 states should be includes in the special provisions, not just the original 9.

Kit B (276)
Monday March 4, 2013, 1:24 pm

I do agree. We need one universal voter ID, one set of rules or laws that are set by the Federal government and supersede all states rights for setting or limiting voting rights.

I too looked for this "study" that Scalia claims is directed to racial entitlements. No such study does exist. For one very clear reason, we are the only country to implement some form of racial balance and then continue to attempt to back track and renege on promises and laws enacted.

John S. (0)
Monday March 4, 2013, 2:39 pm
The issue with Justice Scalia's line of thinking goes well beyond what is mentioned in the article. It doesn't only extend to other racial preference/discrimiination/ or social safety net program. The line of thinking is far more incredulous.

Scalia seems to be saying that the Supreme Court can not allow our elected officials to vote on certain types of cases because their votes can not be trusted not to be influenced by public opinion and the backlash against their vote.

In other words, in certain cases the Supreme Court must act because the People's elected representatives are beholden to the people who elected them. What law then could the court not determine that the legislative process was "compromised". It isn't " Congress we ae striking down this law for its unconstitutionality"... It's Congress, you can not be trusted to pass this law because your votes are compromised by your fear of electoral reprisal"... The court is essentially protecting the theoretical right of a Congress member who voted "yes" but in the courts opinon..."didnt want too"... Justice Scalia doesn't even like to use "legislative intent" to judge cases. But here he has gone beyond that and is suggesting that while we can't trust the intent of the laws framers, we can intuit the wishes of legislators who voted "yes"... (but did not really want too!)

So intent doesnt count but perceived lack of intent does! lol I have never heard such incredible activism from the bench...Congress has NO ROLE in our democracy if the court can not only over turn laws (whiich it can) but also decide that the laws don't really count because the yes votes are not in the courts opinion to be trusted...does that trust extend only to votes that the court likes? The Scalia doctrine....all hail the court....9 unelected individuals who can decide to supplant elected officials,...not just on matters of law...but on the legislative process as well.

Sheryl G (363)
Monday March 4, 2013, 2:51 pm
These Judges who are not elected by the people but are appointed by those who were elected, maybe by a person that someone voted for, should have term limits. I don't want my fate in the hands of people who are not afraid of a loss of position no matter what they do and are not accountable to anyone it seems.

Kit B (276)
Monday March 4, 2013, 2:52 pm

Well said John and very correctly stated. Scalia has determined that only the court has a right to decide on matters that are most properly assigned to other areas of the governmental branches. We should have noted this attitude when he injected himself into the 2000 election. He had no right nor any legal standing to interfere in that situation.

Lois Jordan (63)
Monday March 4, 2013, 3:07 pm
Thanks, Kit. Scalia is one sick puppy. I hope all Americans can recognize this racist attitude for what it is and be as disgusted as so many of us here are. We may not be able to remove him from the bench, but maybe if the media gives him the right "treatment," at least he can be ostracized. Whether it matters to him or not, maybe he'll reconsider some of his remarks if he realizes that history will reflect very poorly on him. The only thing we can hope for is that one day people like this will look in a mirror and notice the ugliness staring back.
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