Justice Scalia Revives Argument That Voting Rights Act Is ‘Racial Entitlement’ — While Case Is Still Pending

Not content with the barrage of outrage Justice Antonin Scalia elicited when he said during a recent oral argument that the Voting Rights Act is a “perpetuation of racial entitlement,” Scalia elaborated on this argument during a discussion with law students Monday, saying that the landmark civil rights legislation to end discrimination in voting is an “embedded” form of “racial preferment,” and even comparing minority status to “child abusers,” according to the Wall Street Journal:

Responding to student questions Monday at the University of California Washington Center, Justice Scalia said that Section 5 functioned as a racial entitlement for minorities because it was unlikely the federal government would use its powers under the provision to protect white people’s voting rights.

Justice Scalia, a New Jersey native, suggested it was unfair to require his current home state, Virginia, to obtain preclearance for voting changes while allowing other states with no similar history of discrimination to alter their election procedures subject only to federal review after the fact. Virginia has elected a black governor—Douglas Wilder, a Democrat who served from 1990-1994—while most states exempt from Section 5 have not, he observed.

Justice Scalia went on to criticize longstanding Supreme Court precedents that, in the words of the famous 1938 Carolene Products case, aim to protect “discrete and insular minorities” from abuse at the hands of political majorities. The court had used the doctrine to expand the number of protected minority groups beyond those contemplated by the Constitution, where the First Amendment, for instance, protects religious sects and unpopular political speech from repression.

But there are “all sorts of minorities,” Justice Scalia said, and merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

In previous speeches, Scalia’s claimed that the Constitution does not protect against gender discrimination, despite over forty years of precedent saying that it does. Here, he seems to be making a related point that we must not ban too many forms of discrimination, lest that somehow put us on the slippery slope to a ban on laws that discriminate against child abusers. This concern is unfounded, as the Constitution does not ban all discrimination, only irrational discrimination. Under longstanding precedent, only groups that have experienced a “‘history of purposeful unequal treatment‘ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities” are entitled to heightened protection under the Constitution. So racial minorities, women and LGBT people are in, but child molesters are out.

Scalia’s public comments on a case that is pending also run contrary the judicial ethics canons that apply to most judges. While not technically binding on U.S. Supreme Court justices, the Code of Conduct of U.S. Judges specifically states: “A judge should not make public comment on the merits of a matter pending or impending in any court,” although allowing for some exceptions. Scalia’s flippant comments on one of the most closely watched cases before the court this term run counter to the core judicial principle that judges maintain the integrity of the court over their personal interests, often in self-aggrandizement or self-defense.