Seven years ago, as the Supreme Court considered a challenge to the Voting Rights Act, Justice Antonin Scalia said the quiet part loud.
The 2006 near-unanimous renewal of the landmark civil-rights bill was “attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia lectured then–Solicitor General Donald B. Verrilli. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”
Scalia’s logic was clear: The 1965 law, which guaranteed black Americans’ right to the franchise in the South for the first time in 100 years, was a “racial entitlement” that Congress itself would never remove, and so the high court was duty-bound to remove it. When Chief Justice John Roberts issued his ruling invalidating the law’s provisions determining which jurisdictions with histories of racial discrimination must submit to oversight by the federal government, however, Scalia’s rationale was absent from the decision. Also absent was any mention of what part of the Constitution the invalidated provision violated.
Roberts didn’t call the Voting Rights Act a “racial entitlement.” Rather, he insisted that while he agreed with the law’s intentions—“any discrimination in voting is too much,” he wrote—close federal oversight of local election laws to prevent discrimination was no longer warranted. “Things have changed dramatically,” Roberts concluded. Shortly thereafter, Republican-controlled states moved as quickly as possible to impose restrictions on voting targeted at minority communities, as if determined to make Roberts look a fool or a liar.