The recent row over comments made by Supreme Court Justice Antonin Scalia have been nothing short of scathing, and rightfully so. When a Supreme Court Justice relies upon the basic logic of a third grader arguing with his buddy at the lunchroom table about who is more bad ass, Darth Vader or Darth Mal, and then says “it’s been written about” to try and pass off an outlandish claim as true, one has to stop and ask “really, did you really just qualify an unwarranted premise with the absolute statement “it’s been written about”? What is equally offensive is the intellectual laziness Scalia engages in to justify his argument, relying on nothing more than a vague tally of roll call votes in the House and Senate to authorize passage. So lets begin the task of breaking down the seemingly childish logic which Scalia employs to rationalize his indefensible stance.
(Hear the audio below)
Roll Call Votes: Real Numbers are Crucial
Let’s start by first looking at roll call vote counts for the original passage of the Voting Rights Act of 1965, Scalia so astutely points out “in the Senate, there – it was double digits against it.”(Scalia 47) In not giving an actual number he leaves it up to the audience to infer what the vote would have been, and for those unfamiliar with the roll call vote tallies it could mean that the measure passed one vote over a majority. In reality the vote count was 77-19 in favor with two abstentions, so 19% of the 100 Senate members in the 89th Congress voted against passage. In looking at the Senators which comprised the dissent, you can see that most of the states affected by the major provisions of the act voted against passage. Surely the more appropriate argument set-up would have been a Federalist vs. Stateist argument as opposed to a “perpetuation of racial entitlement,” but we are getting ahead of ourselves here. Justice Scalia further goes on to point out that the later extensions of certain provision in 1970 under the 91st Congress, gained double digits in opposition in the Senate. The vote on the expiration of Sections 4 and 5 in August of 1975 was 25-52 opposed, with 19 abstentions, the margin was of vote was already reduced by 20% of the voting members, leaving only 26% voting in the affirmative to set an expiration date.
The next step in the analysis would be to look at the coalition framework and voting blocks established in the Senate during this session, but that requires a paper in and of itself, the vote count speaks for itself. In 1975 Scalia indicates that there were only single digits opposed to a re-extension of provisions, this is factually untrue. In looking at the vote counts during for the extension in the Senate during the 94th Congressional term, reauthorization passed 52-42 with 5 abstentions. Of the voting members in the Senate, 42% opposed the extension of certain provisions for 7 years–certainly not a single digit opposition. Scalia then dovetails this with the 1982 reauthorization, implying that the Senate voted on the merits of the extension, cleared it and passed it along for authorization. This is not the case, the Senate introduced S. 1992, which became mired in debate, then invoked cloture tabling discussion indefinitely and the House agreed to Senate Amendments by Unanimous consent. So while the Senate vote may have been 86-8 in favor of cloture with 6 abstentions, it is no indicator of Congressional passivity, if anything it shows the cautious deliberation of Congressional members and the advocacy/coalition building frameworks that went into conjuring consensus amongst both Houses. When it comes to the 2006 reauthorization, the measure passed the Senate by a 98-0 in favor of H.R. 9 with 2 abstentions, Justice Scalia implies that the vote in the House resembled the Senates complicit participation in the “perpetuation of racial entitlements,” again not the case. The House vote to reauthorize the extension of certain parts of the VRA was 390-33 in favor with 9 abstentions, far from the 100% margin, which would imply a complicit “perpetuation of racial entitlements.”
The Mathematics of an “Originalist” Judicial Activist
While there are a plethora of things wrong with Justice Scalia reducing the pre-clearance requirement of Section 5 to nothing more than an ad hominem attack against the efficacy of Congress; nothing is more disturbing than his clear indifference to the political process and the assertion that “this is not the kind of question you can leave to Congress.” This should not be surprising though, Scalia in all rights, is a constitutional originalist, rejecting the notion of the Constitution as a living document and denouncing the judicial search for the “intent of the framers” while making value-neutral rulings premised on the “original meaning” of statutes. Even still, the language of his statement is just as disturbing, extending far beyond the modern interpretation of what it means to be a constitutional originalist, and into the realm of reprising the logical formula of the 3/5ths Compromise because it’s original meaning was an effective model for direct taxation and apportionment of representation. Understandably the underlying tone of his statement comports with his core ethos when looking at the “original meaning” of a statute, but does that justify the indifference to the state of race relations in this country or the perpetuation of the misapplication of the word “entitlement”?
The ontological framework that Justice Scalia constructs is more offensive than the indifference shown towards the racial insensitivity of the entire argument. The use of the word “entitlement” as opposed to “right”, reframes the discussion, creating two diametrically opposed worlds. One where access to uninhibited voting is a privilege to be adjudicated and one where it is a right bestowed. When you couple this with the identification of certain individuals who have been magnanimously bestowed with the privilege of equal representation by saying “…[t]here are certain districts in the house that are black districts by law just about now” you are presented with a picture of Scalia’s true intellectual framework and the meta-narrative of the orignalist logic. In this particular case for him it is not a question of whether or not the Federal Government has the right to legislate pre-clearance measures for States which have an abhorrent record of voter discrimination and disenfranchisement, but whether or not certain individuals have a right to vote. In the original text of the Constitution, the language and meaning of the text presumably applied to white land owning gentry and “what disappears in…[his]… total reduction of the past to it’s subsequent retroactive rewriting is not primarily the “hard facts” but the Real of a traumatic encounter whose structuring role in the subjects psychic economy forever resists it’s symbolic rewriting. (Zizek 109) We can never reach the Real meaning of the original language because our reconstruction is premised on the analysis and interpretation of the Symbolic meaning of language in a modern context. The original meaning resists this Symbolic reinterpretation through the historical context of the document, perpetuating an Imaginary world which effectively erases the “white-washed” indifference of the Founding Fathers. So in other words Mr. Scalia, your statement is the linguistic equivalent of a white hood and burning cross, “ …[w]hite supremacists in contemporary society share with their antecedents of half a century ago a sense, albeit baseless, of dispossession by minorities who with apparent governmental support claim an equal right to full citizenship.”(Webb 214)
Hindsight is 20/20
In a perfect world we would all see each other as human beings, not black, white, Muslims or Christians, just Americans, whose ancestors stole this land from a peaceful peoples, by immigrating to a new nation in search of a better life- really our existence here is the result of failed Native American immigration polices, but that is for another time. It will be interesting to see what the coming days hold in store, will Scalia issue a clarification, will he release this secretive work that discusses the “perpetuation of racial entitlements” because of Congressional largess and bandwagon mentality, who knows, but what we do know is that his record will be read in accordance to the actual meaning of the language and not what he meant to say for generations to come- now that is some juridical originalism for you.
And I leave you with this for your amusement because we are all trolls at heart.