Liberals are jumping all over Supreme Court Justice Antonin Scalia’s comment yesterday during an oral hearing in which he asked whether continuing the special enforcement provisions of the Voting Rights Act in some states was a “perpetuation of racial entitlement.” Many, including his court colleague Justice Sonia Sotomayor, seemed to interpret it as questioning whether the right to vote is itself a “racial entitlement.” For his pains, Scalia was branded a racist. What is left of the aging remnants of the once-vital civil rights movement are hoping that outrage about that remark can galvanize public pressure not just for the continuation of the Voting Rights Act as it currently stands, but against both voter integrity laws and the system of racial majority districts.
The problem with the critique of Scalia is pretty much the same as that with the defense of the legal status quo. What is at stake in this debate and the legal case in question–Shelby County, Alabama v. Holder–is not the right to vote, which Scalia supports as much as any liberal. There is no evidence that anyone in Shelby County is trying to reinstate Jim Crow laws or prevent African Americans or other minorities from exercising their constitutionally protected right to cast a ballot. Nor is there any evidence that this is true anywhere else in the states and counties that remain under direct federal supervision as a result of the 1965 law. The entitlement in question is rather the ability of the Justice Department to act as a national elections commission in certain areas that were once strongholds of racial hatred, even though the country has changed markedly in the last half century. Instead of promoting the false charge that Scalia is a segregationist, the focus should be on who benefits from the continuation of Section Five of the Act. The answer is: a class of political elites that benefit from the creation of racial majority districts.