JIM CREES: Scalia’s comments ‘judicial activism’ at its worst
“No one questions the validity, the urgency, the essentially of the Voting Rights Act.”
- Justice Anthony Kennedy
For years, conservative commentators and politicians have whined about some mythical, and yet supposedly ever so pervasive system of “judicial activism” in these United States.
Every time a judge sitting in a courtroom somewhere across this great land rendered a verdict that didn’t fit a conservative idea of how things should be, a great hue and cry went up, “Woe is me. Judicial activism is destroying the fiber of our country.”
Yessiree Bob. Those damn liberal judges are ruining what this nation is all about.
Rep. Steve King (R-IA) claimed that liberal judicial activism has “ ... begun to break down this civilization, and this culture.”
For, years, decades ... nay, generations, folks to the right of the political spectrum have complained and railed against “judicial activism.’
Except ...except when “activism” fits their agenda, then it mystically morphs into “moral responsibility.” At that point, the more conservative activism the better, and the more astonishingly stupid the argument, the better it is.
The Supreme Court is presently considering arguments on one portion of the Voting Rights Act of 1965.
In very short, the Voting Rights Act of 1965 was passed as one of a passel of laws that were debated and ultimately approved by Congress following passage of the Civil Rights Act of 1964.
Some of the provisions of the VRA needed to be renewed at regular intervals, and they have been so renewed each time they’ve come up before the respective legislative bodies.
In 2006, Section Five renewal was passed by both the Senate and the House with an overwhelming majority.
The Department of Justice explains Section Five saying, “Section 5 freezes election practices or procedures in certain states until the new procedures have been subjected to review, either after an administrative review by the United States Attorney General, or after a lawsuit before the United States District Court for the District of Columbia. This means that voting changes in covered jurisdictions may not be used until that review has been obtained.”
In states that had, in the past, put controls in place that made voting by minorities virtually impossible, (specifically African Americans), Section Five instituted protections that made disenfranchising minority voters that much more difficult.
The present Supreme Court had been asked to review Section Five with the argument being made that the states in question were no longer the Jim Crow states of once-upon-a-time, and there simply was no need to treat one state differently from any other - no matter what the historical record on voting rights might be.
The point can certainly be debated, and in the Supreme Court arguments were made on both sides of the issue. Then along came Justice Antonin Scalia.
Right off, Scalia announced that Congress was inept and unable to make laws in the first place, and so certain legislative activities should be left up to the court.
Judicial activism? Hmmmmm ...
In his own words, “But that’s - that’s a problem that I have. This last enactment, (of Section Five), not a single vote in the Senate against it. And the House is pretty much the same.”
So, if they voted in favor of the renewal, there’s something wrong?
Scalia was astonished that the elected legislators could still see a need for the Voting Rights Act and vote in favor of renewal to the tune of 98-0 in the Senate and 333-85 in the House.
So, he reasoned ...
“Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to 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.”
Yessir, boys and girls - “ perpetuation of racial entitlement.”
According to Justice Scalia, the protection of minority voting rights by the federal government is nothing more than molly-coddling of the ‘black folks.’
A “ ...perpetuation of racial entitlement.”
Ladies and gentlemen of the jury, I implore you.
If this isn’t “judicial activism” I’m a piece of chalk.
The reason voting rights for all Americans and specifically minority Americans have been protected is because of the existence of voting rights protection laws. Even Pres. Ronald Reagan recognized this fact saying, “I favor the Civil Rights Act of 1964 and it must be enforced at gunpoint if necessary.”
Just because the situation has improved, doesn’t mean the law can be eliminated.
If the number of domestic violence cases in any given jurisdiction drop, that doesn’t mean local legislators can eliminate domestic violence laws.
Laws against rape shouldn’t be eliminated because there is no rape in my neigborhood.
The improvement in voting access to ALL Americans over the past 50 years is proof the Voting Rights Act was necessary then, and should be maintained today.
For Scalia to so blithely designate voting protection for minority citizens as “...racial entitlement” is not only judicial activism at its worst, it is also just plain scary language by a person sitting behind the bench in the highest court in the land.
But ...no outrage at all by the “judicial activism” whiners.
And that’s scary too.
“Americans of our own time - minority and majority Americans alike - need the continued guidance that the Voting Rights Act provides. We have come a long way, but more needs to be done.”
- U.S. Rep. Elijah Cummings