Justice Scalia’s Long Campaign Against “Racial Entitlements” Takes an Unexpected Turn

During the oral argument in Shelby County v. Holder, Justice Scalia opined that the overwhelming bipartisan support in Congress for reauthorizing the Voting Rights Act in 2006, followed by President Bush’s signing it into law, did not in fact reflect a considered constitutional judgment of two co-equal branches of government.  Rather, he asserted that it resulted from “a phenomenon that is called perpetuation of racial entitlement.  It’s been written about,” Justice Scalia went on.  “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

Commentators have generally been unkind to Justice Scalia for those remarks.  For example, humorist Andy Borowitz, writing in The New Yorker, suggested that it was the sort of statement that would have gotten Scalia fired if he held a job that did not come with life tenure.  More seriously, Jeffrey Toobin, speaking on the NPR show Fresh Air, lamented that Justice Scalia’s comment was more appropriate for a right-wing talk-radio host than for the distinguished jurist that he has been for most of his time on the Court.

Has the commentariat been unfair to Justice Scalia?  In this column, I consider what he might have meant by claiming that the Voting Rights Act perpetuates a “racial entitlement.”

The Origins of the Term “Racial Entitlement”

After the oral argument in the Shelby County case, St. Louis University law professor Chad Flanders pointed out that Justice Scalia’s concern about “racial entitlements” is hardly new.  He has been complaining about them at least since 1979, when he was a mere law professor.  Professor Scalia used the phrase “racial entitlement” in a law review article decrying race-based affirmative action.  Indeed, it appears that Justice Scalia may have been referring to just that article when he said during the Shelby County oral argument that the phenomenon had been “written about.”

Or perhaps Justice Scalia was referring to another one of his own writings—his concurring opinion in the 1995 case of Adarand Constructors v. Pena.  There, he condemned race-based affirmative action in strong language.  “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes,” Justice Scalia wrote, “is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred.”

Moreover, ten years ago, during an oral argument in yet another affirmative action case, Gratz v. Bollinger, Justice Scalia made exactly the same point that he made during the Shelby County argument.  In the guise of a question, he implied that countries “that have gone down the road of racial preferences, racial entitlements, have” been unable to get rid of them.  In other words, as in the Shelby County case, so too a decade ago, Justice Scalia complained about the “perpetuation of racial entitlement.”

Racial Entitlements in Anti-Discrimination Law

In light of Justice Scalia’s past condemnation of the perpetuation of “racial entitlement,” why did his statements during the Shelby County case spark gasps and outrage?  The answer is context.

On each of the previous occasions when Justice Scalia complained about “racial entitlement,” he was discussing race-based affirmative action.  I do not share Justice Scalia’s negative views about race-based affirmative action, but I follow the logic of his argument.  So do most other supporters of affirmative action.  We understand that when an opponent of affirmative action uses a term like “racial entitlement,” he means it as a kind of shorthand for the standard arguments against affirmative action: (1) that it unfairly penalizes innocent non-minorities; (2) that it reinforces, rather than combats, stereotypes about minorities; and (3) that it treats people as members of a group defined by race, rather than as individuals.  We may disagree with the bottom line, but we can accept that we have a good-faith dispute about the costs and benefits of race-based affirmative action.

But Section Five of the Voting Rights Act, which was at issue in the Shelby County case, is not an affirmative action provision. It forbids certain jurisdictions with a history of imposing racially discriminatory barriers to the exercise of the right to vote from adopting new election rules unless either a court or the Justice Department first certifies that adoption of the new rules does not have “the purpose nor will have the effect of denying or abridging the right to vote on account of race or color . . . .”  That is not an affirmative action program but an anti-discrimination rule.  On its face, it no more permits an Alabama county to adopt new voting rules that deny or abridge the voting rights of white people than those of African Americans or any other racial group.

Thus, in applying the term “racial entitlement” to the Voting Rights Act, Justice Scalia appeared to be taking a large step beyond his prior pronouncements about affirmative action.

Does Anti-Discrimination Law Implicitly Require Affirmative Action?

To be sure, some opponents of affirmative action also oppose anti-discrimination laws because, they say, entities subject to anti-discrimination laws will be pressured to adopt affirmative action programs.

Consider an employer who does not consciously discriminate based on race, but nonetheless has few minority employees.  Now suppose that a minority and a non-minority candidate both apply for a job, and that the employer thinks the non-minority candidate is somewhat better qualified.  Nonetheless, the employer worries that if he hires the non-minority applicant, the minority applicant will sue for discrimination in violation of Title VII of the Civil Rights Act of 1964, which permits a plaintiff to prove part of his case by using evidence of the racial composition of the employer’s workforce relative to the applicant pool.  Faced with the possibility of liability, the employer might proactively adopt a program of race-based affirmative action.  Accordingly, some conservatives oppose anti-discrimination law on the ground that it supposedly pressures employers (and other targets of the law) to engage in affirmative action prophylactically.

Might the same kind of argument be leveled against the Voting Rights Act?  It certainly has been.  Some of the Act’s critics argue that state legislatures draw so-called “majority-minority” districts (that is, electoral districts in which minority voters form a majority in the district) out of fear that failure to draw such districts will leave them vulnerable to litigation under the Act.  And once that happens, this argument contends, people may come to think of the particular districts as belonging to a particular racial group—as a kind of “racial entitlement.”

Justice Scalia made exactly that point just after characterizing the Voting Rights Act as creating a racial entitlement.  He said that as a consequence of the Act, “[t]here are certain districts in the House that are black districts by law just about now.”

Accordingly, I believe that it is possible to read Justice Scalia’s “racial entitlement” claim as simply extending the argument that anti-discrimination laws implicitly lead to affirmative action to the voting rights context.  Read in that way, his statement during the Shelby County argument is not racist.  But it is still problematic.

Justice Scalia’s Claim That the Voting Rights Act Creates a Racial Entitlement Does Not Warrant Its Invalidation

There are two basic difficulties with Justice Scalia’s condemnation of the entire Voting Rights Act as a “racial entitlement.”

First, even if we grant that the Act sometimes induces covered jurisdictions to create majority-minority voting districts, and even if we also assume that such districts wrongly “perpetuate racial entitlement,” the Voting Rights Act regulates much more than district boundaries.  If Justice Scalia thinks that the Act unconstitutionally perpetuates racially-identifiable congressional districts, then he should vote to construe the Act as not requiring such districts, or he should vote to strike the Act down as applied to the drawing of district lines. But he should not condemn the whole of the Act.

For instance, the Act also applies to changes in voting rules that simply discriminate against minority voters—like switching from single-member districts for local elections to at-large districts, or imposing onerous new voter registration requirements.  And Shelby County itself has a far-from-clean record when it comes to protecting minority voting rights.

Thus, the claim that one effect of one aspect of the Voting Rights Act is to tacitly encourage the creation of majority-minority districts cannot be a basis for concluding that the entire Act perpetuates racial entitlements and is therefore unconstitutional.

Second, Justice Scalia’s adaptation of his anti-affirmative action rhetoric to the voting rights context appears inconsistent with his other views.  As I noted above, some conservatives oppose anti-discrimination law because they think it creates subtle pressure for affirmative action.  But Justice Scalia does not oppose anti-discrimination law—at least not categorically.  Indeed, he is an enthusiastic supporter of anti-discrimination law when the alleged discrimination is so-called “reverse discrimination” against white people or men.

Thus, there is reason to question Justice Scalia’s commitment to “color-blindness.”  Indeed, given his enthusiastic embrace of anti-discrimination principles when they are invoked to challenge laws that advantage minorities, one suspects that his real problem with the coverage formula of the Voting Rights Act—which makes the pre-clearance requirement applicable chiefly in the South and other places with a history of voting discrimination—is that it targets conventional discrimination, rather than targeting reverse discrimination.

In the end, pundits who focus on the insensitivity of Justice Scalia’s remarks miss the point.  Plenty of people in the United States routinely make much more racially offensive statements than Justice Scalia.  What makes his views important is the power he has to shape the law.  And in many respects, those views are shared by four other Justices.  If the Court’s conservative majority strikes down Section Five of the Voting Rights Act in the Shelby County case, or strikes down affirmative action in Fisher v. University of Texas, they will thereby substantially impede the cause of racial justice in the United States.  That matters much more than what Justice Scalia may or may not have meant when he uttered the words “racial entitlement.”

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