[EL] Justice Scalia and protection for the states

Wed Feb 27 15:31:23 PST 2013

    Scalia in Shelby County Case: Do States Need Special Protection from
    Courts? <http://electionlawblog.org/?p=47839>

Posted on February 27, 2013 3:28 pm 
<http://electionlawblog.org/?p=47839> by Rick Hasen 
<http://electionlawblog.org/?author=3>

I was struck by this statement from Justice Scalia today at the oral 
argument 
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf> 
in the /Shelby County/ case:

    The problem here, however, is suggested by the comment I made
    earlier, that the initial enactment of this legislation in a --- in
    a time when the need for it was so much more abundantly clear was
    --- in the Senate, there --- it was double-digits against it. And
    that was only a 5-year term.
    Then, it is reenacted 5 years later, again for a 5-year term.
    Double-digits against it in the Senate. Then it was reenacted for 7
    years. Single digits against it. Then enacted for 25 years, 8 Senate
    votes against it. And this last enactment, not a single vote in the
    Senate against it. And the House is pretty much the same. 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.
    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. You have to show, when you are
    treating different States differently, that there's a good reason
    for it.
    That's the --- that's the concern that those of us who --- who have
    some questions about this statute have. It's --- it's a concern that
    this is not the kind of a question you can leave to Congress. There
    are certain districts in the House that are black districts by law
    just about now. And 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.

    Even the name of it is wonderful: TheVoting Rights Act. Who is going
    to vote against that in the future?

I'm going to put aside Justice Scalia's provocative comment about racial 
entitlements, which is getting alot of attention 
<http://abovethelaw.com/2013/02/voting-rights-act-oral-argument-just-how-drunk-with-power-has-justice-scalia-become/>. 
Rather, I want to focus on his idea that judicial involvement is 
necessary here because normal political processes are not working. This 
is a very familiar argument for judicial review (often associated with 
footnote 4 of Caroline Products, and with the work of John Hart Ely), 
that sometimes the political process is stuck and courts need to 
intervene to protect "discrete and insular minorities."  The Court 
needed to get involved in redistricting, and impose the one person, one 
vote rule, for example, because gerrymandered legislatures would not fix 
the reapportionment problem themselves.

It is one thing to talk about whether a particular group (say gay 
Americans, to take an example currently also before the court) need 
extra protection from the courts, necessitating a more searching 
standard of review. But it is hard to claim that /states/ need extra 
protection.  States can spend massive resources lobbying in Congress, 
and should have an exceptionally receptive ear from the state's Senators 
and congressional delegation.  If state leaders in covered jurisdictions 
tried to do this in 2006, I was unaware of it.

It may be true that in 2006 state leaders made a calculation that going 
against the VRA would be a losing political issue, but that's not the 
same thing as saying that states were /powerless/ to get protection 
through the normal political processes.  State leaders in covered 
jurisdictions made a choice---and likely not the same choice they'd make 
today.  (There's been a sea change in attitudes toward section 5, driven 
in large part on having a Democratic DOJ in place during the last round 
of redistricting and at the height of the voting wars).

Is Justice Scalia claiming that states are powerless in other arenas?  
Or is he saying that the fear of being labeled racist stops the 
political process in its tracks, and prevents states from protecting 
themselves. Either way it seems a pretty flimsy argument to support 
extra judicial protection for some of the most powerful actors in the 
political scene.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org

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