March 7, 2013

Private: Post-Racialism and Shelby County Redux: Justice Scalia and the Logic of Racial Entitlement

Atiba R. Ellis, Chief Justice John Roberts, Justice Anthony Kennedy, Justice Antonin Scalia, racial entitlement, Section 5, Shelby County v. Holder, Voting Rights Act of 1965


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.

To appreciate this, we must look at Scalia’s concept of racial entitlement. And fortunately, he has helped us through leaving a paper trail. Before he joined the Court, he wrote about “racial entitlement” in a 1979 law review article. There, he wrote:

The affirmative action system now in place … is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.

In this article, “The Disease as Cure,” Scalia claimed that race-based affirmative action is “fundamentally contrary to the principles that govern, and should govern, our society.” From the bench, he has echoed this view. For instance, in the affirmative action case of Adarand Constructors, Inc. v. Pena, he stated that:

To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.

Similarly, in City of Richmond v. J. A. Croson, Co., Scalia argued that using race-conscious means to “compensate for social disadvantage” was “illegitimate.” And in Ricci v. DeStefano, Scalia decried affirmative action as “a racial thumb on the scales.”   

By suggesting that Section 5 is a “racial entitlement,” Scalia implied that the Act is another form of intractable, impermissible affirmative action by the government in the political process. Section 5, in this reasoning, is illegitimateracial favoritism.  Indeed, the language of entitlement casts the benefit given as unearned and undeserved. Scalia’s logic, then, would call the protections of Section 5 a privilege given to minorities based on race. 

This reasoning ignores history and the Constitution. The Voting Rights Act exists to guarantee equality of access to minorities entitled the right to vote under the Fifteenth Amendment. It was meant to make the political playing field fair by insuring that minorities do not have their right to vote diminished by discriminatory acts or neutral laws with a discriminatory effect.

Rather than being about “racial entitlement,” the Voting Rights Act is really about the bad actors whose practices (whether intentionally or unintentionally) create effects that limit minority voting rights. The Act was meant not to privilege black racial entitlement, as Justice Scalia seems to suggest, but to combat the sense of white racial entitlement that lead to a long history of discrimination on the basis of race. 

Moreover, Scalia’s argument preserves this sense of white entitlement through making it invisible under the cloak of post-racialism. If race-conscious remedies are forbidden, then race becomes an invisible topic. Racial effects may nonetheless continue to exist, but according to this logic, they must be ignored.  Raising the topic makes one a wrongdoer. The effect (as we have already seen in the affirmative action debates) is that the focus shifts from the actual wrongdoers to the victims through the suggestion that they, the victims, are actually victimizing the majority through gaining these benefits. 

Such reasoning is absurd and reveals the danger of post-racialist thinking. And it allows the person persuaded by the argument to ignore our democratic consensus about voting rights: that Congress has broad power to implement race-conscious remedies related to participation in the democratic process. 

Justice Scalia’s logic of racial entitlement would damage this principle on the basis of wanting the world to be race neutral. But the ultimate effect of this logic is that Scalia’s own “racial entitlement” would be preserved behind this veil of neutrality.  Moreover, those whom Section 5 was meant to protect may end up the victims once again. The result is that history may repeat itself, and we may be left to question once again whether elections in the United States are truly fair.

Constitutional Interpretation, Democracy and Voting, Equality and Liberty, Racial Equality, Supreme Court, Voting Rights