Thursday, March 7, 2013
Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.
Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.
In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as
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.
To what writings does Justice Scalia refer? ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings. Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here.
Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality." Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.) His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).
Scalia indeed does use the term "racial entitlement" in his remarks:
The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.
But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional. Scalia wrote then:
[image: caricature of Antonin Scalia by DonkeyHotey via]