On July 2, 1964, then-President Lyndon Johnson signed The Civil Rights Act of 1964, which addressed race, society, religion, minorities, and women with regard to discrimination. Just a little over thirteen months later, on August 6, 1965, President Johnson also signed into law The Voting Rights Act of 1965, reinforcing the Fifteenth Amendment of the U.S. Constitution, by saying that no state is permitted to impose discriminatory voting qualifications. It disallows states from requiring anyone from doing anything that could deny qualified citizens their right to vote without the oversight of the U.S Justice Department. Such practices, at the time (under Jim Crow laws) directed primarily toward black persons (i.e. literacy tests, poll taxes, naming how many soap bubbles were in a bar of soap, naming how many jelly beans were in a jar) were considered legal requirements.
The Civil Rights Act of 1964 and The Voting Rights Act of 1965 were a one-two punch against discrimination in this country, in general and in regard to voting.
Part of the passing of the Voting Rights Act included revisiting it, voting on it again, and it would be passed, or not, for a duration so many years, and then revisited for another vote that number of years later. After its initial passage in 1965, these provisions were revisited after two five-year increments (1970, 1975), a seven-year period (1982) -- at which time, some of the provisions were made permanent -- and after a twenty-five year period (2007). However, it was in 2006, one year before the expiration date, that then-President George W. Bush signed the provisions into law once again. His signature renewed the act for another twenty-five year period (lasting until 2032).
One of the provisions, specifically Section 5, reentered the news on Wednesday of this week when the case of Shelby County [Alabama] v. [Attorney General Eric] Holder came before the Supreme Court. The case is an appeal of a 2011 ruling in a District of Columbia district court to uphold the constitutionality of the Voting Rights Act related to the 2006 renewal as a possible unconstitutional overstepping of authority by the U.S. Congress. During the hearing, Justice Antonin Scalia made what I call a shocking statement about the Section 5 provision of the act -- the provision requiring the U.S Justice Department to approve any changes in voting procedure to ensure those changes are not discriminatory. The law covers, with exceptions for certain cities or districts, eight states (Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas); certain counties or cities in six states (California, Florida, New York, North Carolina, South Dakota, Virginia); and certain townships in two states (Michigan, New Hampshire). All of these areas were heavily allowing or enforcing voting discrimination to take place many decades ago.
Four years ago, just two years after President Bush signed the last extension of the law, Justice Scalia stated that, since it passed unanimously, its extension was a means to undermining the law itself. No, he did not see it as support for the law simply growing, which it has done in every continuance since 1970, to a unanimous vote in 2006. (I do not mean that as an eventuality that finally arrived, just that such has been the history.) He cited the Sanhedrin, a former Jewish high court system, having a rule regarding the death penalty whereby any unanimous votes on it rendered it invalid.
Justice Scalia didn't mind being unanimously approved by the Senate (98-0) in 1986 to sit on the Supreme Court, though.
Justice Scalia expanded on his comments from four years ago, by stating the following from the bench on Wednesday:
"This Court doesn’t like to get involved in racial questions such
as this one. It’s something that can be left to Congress.
The problem here, however, is suggested by the comment I made
earlier, that the initial enactment of this legislation, in a time
when the need for it was so much more abundantly clear, was — in the
Senate, there — double-digits against it. And that was only a
Then, it is reenacted 5 years later, again for a 5-year term.
Double-digits against it in the Senate. Then it was reenacted for 7
years. Single digits against it. Then enacted for 25 years, 8 Senate
votes against it. And this last enactment, not a single vote in
the Senate against it. And the House is pretty much the same. 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
I don’t think there is anything to be gained by any Senator to vote
against continuation of this act. And I am fairly confident it will be
reenacted in perpetuity unless a court can say it does not
comport with the Constitution. You have to show, when you are treating
different States differently, that there’s a good reason for it.
That’s the concern that those of us who have some
questions about this statute have. It’s a concern that this is
not the kind of a question you can leave to Congress. There are certain
districts in the House that are black districts by law just about now.
And even the Virginia Senators, they have no interest in voting against
this. The State government is not their government, and they are going
to lose votes if they do not reenact the Voting
Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"
Justice Scalia believes that the Voting Rights Act perpetuates racial entitlement? Really? Well, Justice Scalia, you have the first letter and the number of syllables correct: it is not entitlement; it is equality. As far as the idea of racial entitlement, it is not the Voting Rights Act, or its last reenactment, that perpetuates racial entitlement. White persons denying persons who are not white the right to vote is racial entitlement. ("We're entitled to vote, while you're not.")
If the Voting Rights Act is struck down by the Supreme Court, it makes the controls to put this train in reverse more accessible. Anyone who has followed the news is aware of attempts to disenfranchise voters -- mostly blacks, other minorities, and the poor -- that have been well under way for some time. Through voter ID cards, gerrymandering (redistricting voting districts), huge cutbacks on early voting, etc., keeping certain persons from voting seems clearly to not be an unfortunate side effect of these processes, but a desired goal. Wasn't that same goal of keeping others from voting the reason for the Civil Rights Act of 1964 and the Voter Rights Act of 1965 in the first place? Wasn't that same goal in our past? Wouldn't a reversal mean that every sore throat from screaming and every sore pair of feet from walking at public protests...every person directly affected by "separate but equal" environments...every person who was publicly humiliated...every person who was severely beaten, some with permanent injuries...every person who shed their blood...and every person who died for equal rights, went through all that for nothing? Yes, it would.
That cannot happen! That must not happen!
Justice Scalia, it is clear that you want the country to go backward and there is a likely racial component to that desire. I suspect that not every justice on the court shares your views, or shares them as vehemently as you do, but I fear that too many might. After seeing something happen that I never that would -- the Citizens United decision three years ago -- that lies firmly on the carpet of culpability resting at the foot of the same Supreme Court on which you sit (and which you voted in favor), that "too many" sharing your beliefs will equal "enough" to strike down the nearly-fifty-year-old law.
I admit to not trusting all the time two of the three branches of government, executive (President) and legislative (Congress), from time to time. The third branch, judicial (Supreme Court), seldom grasped my attention in the same way. However, that is no longer the case. The judicial branch has become just as untrustworthy as the executive and legislative branches have been.
Justice Scalia did get one thing right, although not in the way he intended it. When he said, "Whenever a society adopts racial
entitlements, it is very difficult to get out of them through the normal
political processes", he is correct. Our history shows that white
persons were entitled to vote, while black persons were not,
and it took us all the way up to 1965, the latter half of the twentieth
century, to begin to change that.