Justice Antonin Scalia

  • June 17, 2013

    Editor's note: This post has been updated to include comment from UC Davis School of Law Professor Gabriel "Jack" Chin.

    by Jeremy Leaming

    The U.S. Supreme Court voting 7-2 dealt a setback to Arizona’s rigid voter ID law, saying the state’s additional citizenship requirements were preempted by federal elections laws.

    The setback could be seen as a victory of sorts for opponents of state efforts aimed at crafting and implementing more hurdles to voting, ones that disproportionately impact minorities, poor people, the elderly and students. Justice Antonin Scalia’s opinion, however, left the door open for Arizona and other states to try to alter the National Voter Registration Act (NVRA, also known as motor-voter) to impose stricter requirements to vote. 

    In Arizona v. Inter Tribal Council, the majority led by Scalia found that Arizona’s Proposition 200 provision requiring elections officials to “reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship” must “give way” to the federal form created by the Election Assistance Commission (EAC). The NVRA requires states to “accept and use” that federal form. As Scalia noted, the federal form “does not require documentary evidence of citizenship; rather it requires only that an applicant aver, under penalty of perjury, that he is a citizen.” Scalia was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

    The NVRA and the EAC were created pursuant to the Constitution’s Elections Clause (Article I, Section 4), which states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….”

    Scalia wrote that the “textual question” in the case centered on whether the NVRA’s requirement that states “accept and use” the federal form preempts Arizona’s state-law requirement that officials reject “the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.”

    Arizona officials argued that its reading of the federal law allowed it to reject a federal form if it failed to include the additional information set out in the state law.

    Scalia said it “is improbable” that the federal law “envisions a completed copy of the form it takes such pains to create as being anything less than ‘valid.’”

    He continued, “States retain the flexibility to design and use their own registration forms, but the Federal Form [created by the EAC]  provides a backstop: No matter what procedural hurdles a State’s own form imposes, the Federal Form guarantees that a simple means of registering to vote in federal elections will be available.”

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • March 26, 2013

    by Jeremy Leaming

    Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

    After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

    Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

    Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

    Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

    Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

    The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

    Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

    The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

    The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

    Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

    Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”


  • March 7, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In my earlier guest blog on Shelby County, AL v. Holder, I suggested that the conservative justices of the Supreme Court would be tempted to offer a post-racialist narrative concerning the pre-clearance provisions of the Voting Rights Act. 

    The justices did not disappoint. Justice Anthony Kennedy asked whether Alabama should remain “under the trusteeship of the United States government.” Chief Justice John Roberts asked whether “the citizens in the South are more racist than the citizens in the North.” Both of these comments implicitly ask whether the long history of race has been atoned for once and for all.

    And then there was Justice Antonin Scalia’s statement on the Voting Rights Act. In explaining the almost unanimous consensus for the 2006 reauthorization of Section 5, Scalia said:

    Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. 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.

    On one level, this quote fits the post-racial narrative. Yet Justice Scalia intended a deeper message by invoking the rhetoric of “racial entitlement.” That message is the ahistorical belief that race-conscious analysis is immoral and leads to corrupt outcomes. Establishing this concept is part of a larger post-racial agenda (as we have seen already in the affirmative action debates), and the Voting Rights Act is the latest battleground. Yet, if applied to the right to vote, it will fly in the face of the plain text of the Constitution and our democratic consensus to insure equality in voting.

  • March 1, 2013

    by Jeremy Leaming

    Following oral argument in Shelby County v. Holder several court-watchers, to the consternation of some, wrote that the Voting Rights Act’s integral enforcement provision, Section 5, looked to be on the chopping block largely based on courtroom theatrics.

    But many of those court-watchers, such as The New York Times’ Adam Liptak, noted that it was indeed risky to make  predications based only on oral argument, while nonetheless pointing out that in 2009 in Northwest Austin Municipal Utility District v. Holder, Chief Justice John Roberts and other members of the high court’s right-wing bloc made it rather clear that Congress should revisit the formula used to determine what states are covered by Section 5.

    As Liptak noted, Congress did not revisit the formula. And what happened during oral argument earlier this week? You had the Court’s right-wing justices grousing over the same things they did in Northwest. So it doesn’t take much of a leap to figure Justice Anthony Kennedy, who asked how much longer must Alabama remain under U.S. “trusteeship” is ready to join Roberts, and Justices Antonin Scalia, Clarence Thomas and Samuel Alito in striking Section 5, by ending the use of the formula. (Section 5 requires states and localities, mostly in the South, to get “preclearance” of any proposed changes to their voting laws and procedures to ensure that they do not have the effect of discriminating against voters. The Constitution’s 14th and 15th Amendments provide Congress the power to take appropriate action to ensure that states do not deprive people of liberty or discriminate against voters because of their race.)

    The Brennan Center’s Myrna Pérez writes that the “arguments themselves do not provide much predictive value,” and that little was discussed during oral argument “over what exactly Congress needed to do differently to have appropriately fulfilled its duties.”

    ACS President Caroline Fredrickson also told TPM’s Sahil Kapur that the “silver lining is ultimately oral arguments are rarely a predictor of outcomes of the case.”

    Yep, lots of folks were predicating Kennedy would save the day for the Obama administration’s landmark health care reform law the Affordable Care Act. And of course we know how that turned out.

    As noted on this blog numerous times, Section 5 is the power behind the Voting Rights Act and Congress has the constitutional authority to combat racial discrimination in voting. Section 5, reauthorized in 2006, has helped prevent states bent on suppressing the votes of minorities from doing so, including Alabama, South Carolina, Texas and Florida. Without Section 5, those states will have great leeway in pursuing schemes to dilute the minority vote.