Justice Scalia is taking a lot of heat for saying, during the oral argument in the case challenging Section 5 of the Voting Rights Act, that the act represented the “perpetuation of racial entitlement.” But I want to look at two other statements he made during that argument and show why they contradict many other statements he’s made.
One thing he said was this:
“The concern here is this is not the kind of question you can leave to Congress.”
Really? It’s not? In the past, Scalia has waxed quite eloquent about judicial restraint, arguing that judges should show deference to the democratic process. Anything else, conservatives claim, is “legislating from the bench” by “unelected judges.” But he throws that deference out instantaneously the moment he disagrees with Congress. All the stranger in this case, where the Constitution explicitly grants Congress the power to protect the right to vote for racial minorities. Amendment 15 says:
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.2. The Congress shall have power to enforce this article by appropriate legislation.
So much for originalism and textualism, eh? And then he actually cited foreign law! When someone noted that the law being challenged was passed 98-0 by the Senate (the same vote by which he was confirmed for his job, by the way), Scalia said:
“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.”
Leaving aside the irrational nature of that claim (he surely would not accept the premise that any time the Supreme Court agrees on an issue 9-0, “there must be something wrong there”), he’s doing the very thing that he and his fellow conservatives have screamed bloody murder about — cited foreign law! So I’m sure we’ll be seeing the right wing pundits express outrage over this, right? Yeah, not a chance. It’s only wrong when it’s done to support something they don’t like.