Scalia’s contempt

3/1/2013

Justice Antonin Scalia pronounced during a Supreme Court argument this week: “This is not the kind of a question you can leave to Congress.”

The subject was the Voting Rights Act, one of the most successful pieces of civil rights legislation in U.S. history. The law’s Section 5 requires nine states and assorted jurisdictions in seven others to win Justice Department approval before they change their voting laws.

The burden is on these jurisdictions, unlike the rest of the country, to prove that such changes won’t adversely affect the right of African Americans and other minorities to vote. Shelby County, Ala., was before the Supreme Court arguing that this requirement unfairly infringes on Alabama’s sovereignty.

Congress adopted the Voting Rights Act in 1965 and has reauthorized it four times, most recently in 2006. Each time it has extended Section 5 on the grounds that some jurisdictions, mostly but not only in the South, have egregious records of interfering with blacks voting.

Originally such interference took the form of “literacy tests” and other blocks to voter registration. These days it can involve subtler ways of limiting minority turnout, such as moving polling places.

The 2006 reauthorization was based on voluminous evidence that the covered jurisdictions have a propensity toward discriminatory rules. The Senate agreed by a vote of 98 to 0; the House, 390 to 33.

“It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation,” Justice Elena Kagan said. That might seem self-evident, but not to Justice Scalia.

“Or decided that perhaps they’d better not vote against, that there’s … none of their interests in voting against it,” he said. He elaborated on why he feels free to dismiss this action: “I don’t think there is anything to be gained by any senator to vote against continuation of this act … They are going to lose votes if they do not re-enact the Voting Rights Act. Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?”

This is a stunning line of argument. Congress is empowered to write legislation enforcing the 14th and 15th Amendments. But if Justice Scalia doubts the purity of lawmakers’ motives, then apparently this power is limited.

We wonder how the justice can discern what lay within the hearts of these 98 senators. We also wonder how many challenged acts of Congress would survive if the court saw fit to strike down any that were enacted by lawmakers considering, in part, their re-election prospects.

Chief Justice John Roberts, Jr., who expressed skepticism about the Voting Rights Act on different grounds, has been eloquent on the court’s responsibility to defer to Congress and the democratic process when that is appropriate. We hope he will not want to associate himself with Justice Scalia’s contempt.

Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. This week, we heard no grounds for the court to claim superior wisdom on that question.

— Washington Post