The Endless Perpetuation of a Racial Entitlement Not to be Discriminated Against: When Will it Ever End?

Joseph Fishkin

The Voting Rights Act had a relatively rough day in court today as the conservative justices asked Solicitor General Don Verrilli and LDF’s Debo Adegbile rather skeptical-sounding questions about the 2006 reauthorization.  (The oral argument transcript for Shelby County v. Holder is available here.)  Section Five of the Voting Rights Act singles out some jurisdictions with long histories of discrimination for special scrutiny; it requires them to submit all changes to their voting laws to the DOJ or a court.  From the skeptical-sounding Justices, I hear three arguments for why the reauthorization of Section Five might fail the new congruence and proportionality test the Court has devised (or whatever test the Court decides to apply to Congress’ use of its Fifteenth Amendment enforcement power).  Put simply, they are:

(1) The South has changed.  As Burt Rein, counsel for Shelby County, put it: “the problem to which the Voting Rights Act was addressed is solved.” (tr. pg. 65)

(2) Today, sure there may be race discrimination in voting, but it’s equally bad in the North and the South.  Massachusetts is just as bad as Mississippi, if not worse. (see CJ Roberts on p.32)

(3) This one is the most novel: Section Five of the VRA amounts to a “racial entitlement,” and the Court must strike it down. This one is Justice Scalia’s particular contribution.  He argues that the Court must step in to correct what amounts to a political process failure: no one but the judiciary can stop the “perpetuation of [a] racial entitlement” once enacted.  This argument represents a clever, indeed somewhat mind-bending, twist in the long trajectory of process theory arguments and representation-reinforcing judicial review.

The first of these three arguments is straightforwardly about Congressional power and federalism: is there enough wrong to justify the remedy?  The second turns to claims of dignity and equal treatment—not of people, but of states.  The third mines a special vein of political and constitutional concerns that link Shelby County v. Holder with Fisher v. University of Texas (the other high court case this term instigated by Ed Blum and the Project on Fair Representation).  For Blum, and for Justice Scalia, these cases are in part about the need for courts to use the clear command of constitutional law to override suspect legislative judgments (of Congress, in reauthorizing the VRA) and educational judgments (of the University of Texas)—judgments that are suspect because they seem infected with a suspicious desire to achieve some conception of fair representation (in legislatures, on college campuses) on the basis of race.

This last argument presses toward a place I doubt most of the Justices in the conservative majority want to go.  But they don’t need to.  The project of anti-anti-discrimination includes a multitude of helpful tools.  In this case, arguments (1) and (2) may do the job nicely.  I’d bet on (2), with a minor assist from (1).  More about all three, especially Justice Scalia’s distinctive third argument, below.

Arguments 1 & 2: A Changed South and the Dignity of States

First, regarding arguments (1) and (2): Of course it is true that the South has changed.  When the Voting Rights Act was passed, there were parts of the South, such as Alabama, where registration rates were about 70% of whites and 20% of blacks.  Today they’re equal.  Burt Rein’s main argumentative gambit was to narrow the definition of “the problem” the VRA aimed to address: if we define “the problem” exclusively in terms of registration rates and literacy tests, then fair enough, it is solved today.  Indeed it was largely solved back in 1982—so why did the Court uphold the reauthorization last time around?  Even back then, because of the VRA itself, literacy tests were long gone.  Registration rates were looking up.  Rein cleverly conflates the mechanism of the coverage formula (it covers states that once used specific devices such as literacy tests and that once had low minority registration rates) with the purpose of the formula, which was and is to identify the states with the worst records of voting discrimination, of all kinds.  And here, there is a great deal of empirical evidence to suggest that the coverage formula does accurately, if not perfectly, identify the states and smaller jurisdictions with the worst continuing record of voting rights violations.

Debo Adegbile used some of his time to fight argument (1) with some colorful examples from Alabama itself.  “We don’t think [Section 5] needs to be there in perpetuity,” he said.  But in Alabama “there were legislators that sit today that were caught on tape referring to African American voters as illiterates. Their peers were referring to them as aborigines.”  The Chief Justice responded crisply: “Have there been episodes, egregious episodes of the kind you are talking about in States that are not covered?” (Yes.) “Well, then it doesn’t seem to help you make the point that the differential between covered and noncovered continues to be justified” (61-62). In other words, faced with this challenge to argument (1), the Chief moved straight to the higher ground of argument (2).  Maybe there’s still racism, the Chief is saying—even “egregious episodes” of race discrimination in voting—but as long as it’s everywhere, and not just in the South, it would apparently violate states’ dignity to hold some states to tougher standards than others.  Or so runs argument (2).

For Justice Kennedy, this story of the dignity of states seemed to be the main story.  Based on the questions he asked today, he seemed to be hoping that there was a way to strike down the coverage formula—which would mean Section Five would suddenly be lifted everywhere—but then use “bail-in” lawsuits to bring some jurisdictions back under coverage.  Bail-in has been relatively rare to date (as has bailout, even among jurisdictions that could easily bail out if they wished).  But obviously, if Justice Kennedy steers the majority in this direction or writes on his own as the fifth vote, we’ll be hearing a lot more about bail-in in the future.

Part of the appeal of bail-in for Justice Kennedy is that it means we will cover states through an individualized review process: instead of the weight of history, and an aggregation of past wrongs, we will have a present-day evaluation by a court of each state on its own.  There is a strand in conservative politics and law that is all about laying the Civil War to rest—and stating forcefully that the present is free of the influence of the racial conflicts of the past.  Justice Breyer may have been right, but I’m not sure he was being very politic, when he mused, toward the end of the oral argument, “What do you think the Civil War was about?  Of course it was aimed at treating some States differently than others.” (p.60) “It” here is Section Five.  To suggest that the Voting Rights Act is ultimately part of the same historical fabric as the Civil War is to suggest something that is (a) entirely true, but (b) probably an impolitic thing to say to one’s more, shall we say, post-racial colleagues.

Argument 3: Justice Scalia’s Distinctive Process Theory

Justice Scalia’s argument was the most original, and he was obviously itching to get it on the table.  Before anyone else had raised it, he raised the fact that the vote in the Senate for the 2006 extension was 98 to 0 (see p.16).  Twice (p16, 46-7) he recited the votes for successive reauthorizations of the Act, noting that there were fewer dissenting votes over time, to the point that in the most recent enactment, “not a single vote in the Senate” was against it.

Now it’s not hard to come up with a few reasons why the anti-Voting Rights Act vote might have declined over time.  If you just put up a graph of former Klan members in Congress, I have no doubt you’d see a considerable decline from 1964 to 2006; the proportion of Members of Congress who would agree with the statement “segregation now, segregation tomorrow and segregation forever” no doubt declined precipitously as well.  But Justice Scalia instead erects a straw man, imagining the same Congress looking out at the state of race discrimination in voting at two different times and deciding that “the situation was even clearer and the violations even more evident” (p.16) in 2006 than in 1964, as reflected in the more unanimous vote.  Since the voting rights violations in 2006 are obviously considerably less egregious than in 1964, Justice Scalia believes he has knocked down his straw man.  (It’s not entirely clear that he has done even that, since “more egregious” and “more evident” are not the same: perhaps today the violations are less egregious but more evident, in the sense that we can more unanimously appreciate that they are a problem.)  In any event, having knocked down his straw man, Justice Scalia proceeds to argue as follows:

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. And I am fairly confident it will be reenacted in perpetuity unless -- unless a court can say it does not comport with the Constitution. (p. 47).

That statement drew gasps in the courtroom.  A student of mine who was at the oral argument says “all breathing stopped.”  And this was not a place that Burt Rein, counsel for Shelby County, was willing to go, when Justice Sotomayor pressed him on rebuttal about whether he viewed the VRA as a “racial entitlement.”  For Justice Scalia, though, this is pure process theory—Carolene Products through the looking glass.  “[T]his is not the kind of a question,” he argued, that “you can leave to Congress.”

So why, exactly, can Congress not be trusted to calibrate the burdens of the VRA?  Here Justice Scalia expands on the much more elliptical argument he made in NAMUDNO, the last case challenging Section Five.  At that oral argument, he said of the 98-0 reauthorization vote, “The Israeli supreme court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.”  Today he said quite a bit more.

In one sense, Justice Scalia’s problem is with the Seventeenth Amendment, which provided for the direct election of Senators.  The VRA, he suggests, is popular among the people who elect Senators and Members of Congress.  But who will stick up for the dignity of the states themselves?  They have no representatives in Congress anymore!  As he put it: “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.” (p.47)

But there’s something deeper here than a complaint that elected representatives are insufficiently concerned with federalism and the protection of the dignity of states, because they are too responsive to the people.  The complaint is really that the political process itself—and indeed, the American people—have been corrupted by an ideology with which Justice Scalia strongly disagrees, an ideology in which the Voting Rights Act is sacrosanct.  (“Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?” (p.48)).

And that brings me to what is so explosive about the assertion that the VRA is a “racial entitlement.”  Here I think Justice Scalia is tapping in to a story that the Court has been telling at least since the 1989 case of City of Richmond v. Croson, in which a majority of Justices were highly skeptical that Richmond’s minority set-aside program was enacted as a response to “widespread discrimination.”  Instead, the Court suspected that it was really a political giveaway to a racial group—what one might call a “racial entitlement.”  Justice Scalia himself injected that phrase into the U.S. Reports in his concurring opinion in Adarand Constructors v. Pena, another case striking down a minority set-aside program. “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes,” he wrote, “is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.”  Adarand, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).  But none of the opinions in Adarand raised as much suspicion of Congress’ motives as the Croson case raised regarding the motives of the City of Richmond.  More recently, in Ricci v. DeStefano, the Court, and especially Justice Alito, delved deep into a story of racial politics at the municipal level in order to argue that what the City of New Haven styled as compliance with Title VII was really (what Justice Scalia might call) the politics of racial entitlement.

What is different about today’s oral argument is that Justice Scalia appears to be taking this basic framework—a claim that the government was motivated not by any real desire to undo discrimination, but instead by a politics of “racial entitlement”—and applying this framework not to Richmond or New Haven but to Congress.  We are supposed to believe, on Justice Scalia’s view, that the entire Senate is so cowed by some force (the stifling tide of political correctness?  The desperate desire to avoid appearing racist?  Or perhaps even worse, an actual ideology they all believe in, which holds that race discrimination is a very widespread problem?) that the Senate is incapable of discharging its basic constitutional responsibilities.  And so courts must step in.

I call this Carolene Products through the looking glass because it’s a fun-house inversion of Footnote Four.  Let us note that until this month, the Senate has never, in its history, had two black Senators serving at once.  Yet we are supposed to believe that black people—the quintessential discrete and insular minority for purposes of equal protection scrutiny—are so powerful, so overwhelmingly powerful in our politics, that no Senator can stand in the way of their “racial entitlements,” and thus courts must step in.  This is an amazingly conspiratorial view of our politics.  It sounds like John Hart Ely as told by Glenn Beck.

Justice Scalia made the intriguing suggestion at oral argument today that this concept of racial entitlement “has been written about.”  Presumably he is suggesting that he is not the source.  I am not aware of any political science argument of this shape, but perhaps I am not reading the right kinds of journals; if anyone has an idea of what Justice Scalia is referring to, I’d love to read it in the original.  Alternatively, it may be, more disappointingly, that Justice Scalia is simply making an analogy between the idea of entitlements in general being difficult to repeal once enacted, and the Voting Rights Act’s provisions being difficult to sunset once enacted.

And in one sense perhaps that is right.  As I’ve argued on this blog, the Affordable Care Act is an entitlement that will be extremely difficult if not impossible to reverse.  The American people will, over time, become accustomed to the idea that they cannot be denied health insurance.  That will become part of the social compact.  Similarly, I think the Voting Rights Act—not the specific procedural mechanism of Section Five, but the VRA as a whole—is part of the American firmament.  Americans generally agree that minority voters have a right, or perhaps we should say a “racial entitlement,” not to be discriminated against.  Protecting that entitlement requires strong procedural protections—if not Section Five as it stands today, than some other different but similarly robust measures, to which Justice Scalia will also likely object on one ground or another.

If reauthorizing Section Five amounts to discrimination on the basis of race (in favor of racial minorities), then perhaps we ought to paraphrase (and invert) the Chief.  If you want to stop Congress from doing things like reauthorizing Section Five, then stop Alabama legislators from viewing black voters as “illiterates” and “aborigines.”  Get Texas legislators to stop intentionally drawing district lines that freeze out rising minority populations just as they are about to win a district.  The way to stop Congress from discriminating on the basis of race is to stop all this discrimination on the basis of race.
Posted 11:33 PM by Joseph Fishkin [link]