Lest anyone be fooled into thinking that yesterday’s 5-4 ruling crippling the Voting Rights Act was anything but five justices substituting their ideologies for the law, let us recall that Justice Scalia showed his cards during oral arguments in February.
- He denigrated the VRA provisions at issue as a “racial entitlement.”
- He said that “this is not the kind of question you can leave to Congress,” even though the 15th Amendment specifically says that “Congress shall have power to enforce this article by appropriate legislation.”
- He cited the “wonderful” name of the Voting Rights Act and the lopsided congressional majorities in favor of reauthorizing the law in 2006 as evidence that Congress wasn’t sincere when it extended the law.
All this, coming from the Justice known for claiming fealty to the text of the laws.
It was no surprise to find Scalia voting to undercut the Voting Rights Act. But his loss of message control during oral arguments makes clear that this decision is about politics and power, not principle.