Questioning Justice Scalia's Originalism

This guest blog from Gary Bledsoe and Robert S. Notzon is a response to the Of Many Things column by Matt Malone, S.J., in the Feb. 25 issue:

As lawyers who are both Catholic, we read Father Matt Malone's column on Justice Antonin Scalia with great interest. Our view of our duties as Catholics includes an obligation to help those who are less fortunate, and we have spent our lives dedicated to that mission to the best of our abilities as practicing attorneys for our private clients as well as representing the membership of the National Association for the Advancement of Colored People and other racial minority interests as pro bono attorneys.


As two lawyers who have brought dozens of civil rights cases, including voting rights cases, in the State of Texas for more than a decade, and who have had recent victories from the District of Columbia District Court pending under Section 5 of the Voting Rights Act, we were very interested in the Supreme Court arguments held on Feb. 27, 2013, on a petition filed by Shelby County, Ala., seeking the removal of Section 5 from the V.R.A. as unconstitutional. We both traveled to Washington, D.C., to personally attend the argument before the Supreme Court.

As the argument began we listened earnestly with the other members of the Supreme Court Bar, as we knew this was a very important case. From the many voter hotlines we have handled and judicial hearings over irregularities we have participated in, we recognized as N.A.A.C.P. officials that many people could be negatively affected by the outcome of this case. Specifically, that minority voters across Texas would suffer even greater abridgments of their rights to vote without the protection of Section 5 of the V.R.A., given that even with Section 5, Texas officials have continued to take intentionally racially discriminatory actions against its minority voters as exhibited in both the latest redistricting and voter identification laws out of Texas that were denied pre-clearance in August 2012. The question that glared at us as the context for this argument was, “If struck down by the Supreme Court, how much worse will Texas act if they are not faced with the known constriction of Section 5 pre-clearance review?” Fear aside, we were buoyed by the fact that the Supreme Court had every reason to uphold Section 5 of the V.R.A. for at least the following reasons:

  • Congress had just reauthorized the V.R.A. in 2006 based upon thousands of pages of testimony regarding the continued need for the V.R.A. and particularly Section 5;
  • The reauthorization vote was 98 to 0 in the Senate with every senator from a state covered by Section 5 voting for its reauthorization and 390 to 33 in the House;
  • In just the last six months, Texas had been found to have intentionally discriminated against its minority populations in its most recent redistricting efforts and that its voter I.D. legislation was ruled as very troubling at best;
  • Shelby County, Ala., had its own recent consistent past of racially discriminatory treatment of its citizens obviating any legitimacy to their request that Section 5 is unnecessary or unconstitutional; and, lastly,
  • The VRA has opt-out and opt-in provisions which directly address the question of “fairness” in having some jurisdictions covered under Section 5 and some not—that is, if a covered jurisdiction feels that they are unfairly saddled with Section 5 pre-clearance burdens, they need only establish that they have not engaged in racially discriminatory behavior for a consistent period of time. Shelby County has not even attempted to be removed from coverage, most likely due to the fact that their discriminatory conduct remains in existence, if not notorious.

While listening to the argument, we were taken aback when Justice Scalia stated his presumption, without any evidence in the record to support it, that the 98 to 0 vote to reauthorize the V.R.A. in the Senate should be construed not as a vote of unusually strong support for the evidentiary record and/or the continued need for the V.R.A., but as showing that the senators were unwilling to vote against the “perpetuation of a racial entitlement.” Specifically, Justice Scalia stated:

Now, I don’t think that’s [the 98 to 0 vote] 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. 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 re-enacted in perpetuity unless—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—that’s the concern that those of us who—who have some questions about this statute have. It’s—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....  Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future? 

We have a number of problems with this recitation. First of all, as retired Justice Sandra Day O’Connor said on her interview on The Rachel Maddow Show on March 4: “Justices should avoid unnecessarily offending persons by what they say or do on the court.” Many people died so that African-Americans would have the right to vote. People died in Selma, Ala., Philadelphia, Pa., Mississippi and other places, and many others were beaten profusely by either law enforcement authorities or hate mongers. So to reduce the V.R.A. to a derogatory epithet of a “racial entitlement,” is highly offensive. And secondly, the 15th Amendment gives Congress the clear authority to reauthorize the V.R.A., and it should not be for a Supreme Court to look behind it as a Super Legislature to do the job the legislature should have done in their opinion.

Congress received thousands of pages of data and heard testimony from dozens of witnesses before it decided to renew the Voting Rights Act—and even then for only 25 years with a review provision after 15 years and with the opt-out and opt-in provisions. Congress properly exercised this authority and we would think that even Justice Scalia’s method of “original meaning” analysis, if properly applied, would lead to the conclusion that Section 5 of the V.R.A. is constitutional as reauthorized to ensure compliance with the 15th Amendment to the U.S. Constitution.

Father Malone suggests that Justice Scalia has ruled on cases contrary to his personal views, but did not provide any specific ruling or case. For Justice Scalia to look at the Congressional record on V.R.A. reauthorization and the record before him in this case (which includes amici briefs and records of the continued need for Section 5 across the South to include Texas) and then say from the bench that: (1) Section 5 is a racial entitlement and (2) that only a court ruling of unconstitutional can end a racial entitlement without any allowance for the Congress’s authority and without any finding on the appropriateness of Congress’s reauthorization of the V.R.A., speaks to a justice that is engaging in judicial activism and not merely impartially ruling on the cases before him.

There can be no denying the clear debate between the “original meaning” and “living Constitution” methods of constitutional analysis, which will not be resolved here. However, Father Malone injudiciously argues, “If Mr. Scalia really wanted to impose his own views, the more subjective ‘living Constitution’ method would be the way to go.” However, given Justice Scalia’s recent comments from the bench, it appears more accurate to assert that “original meaning” is merely a too-clever term meant to conceal the insertion of Justice Scalia’s personal beliefs. Should Justice Scalia rule that Section 5 of the V.R.A. is unconstitutional, he will have clearly tipped his hand as a judicial activist—regardless of the title of his method of analysis.

-Gary Bledsoe and Robert S. Notzon

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Jim McCrea
5 years 9 months ago
If Scalia, who has an Opus Dei son as priest, is exhibiting the best of Catholic thinking during his term on the SCOTUS, that is a very cogent argument AGAINST appointing Catholics to the SCOTUS. The man is disgusting.
Tim O'Leary
5 years 9 months ago
Jim - Disgusting? Opus Dei priest as an insult?? Exclusion of Catholics from the Supreme Court??? Anti-Catholicism is alive and well (especially the self-loathing kind). The KKK couldn't have said it any better.
Kevin McDermott
5 years 9 months ago
Two powerfully reasoned comments, Jim and Tim.


The latest from america

Photo: IMDB
A new Netflix miniseries brings out the story’s aspects of adventure and conflict, with occasionally pulse-pounding results.
Rob Weinert-KendtJanuary 19, 2019
Protestors march to support a U.N. anti-corruption commission in Guatemala City on Jan. 6. Photo by Jackie McVicar.
“What they are doing not only puts Guatemala at risk but the entire region. Bit by bit, for more than a year, they have been trying to divide us. The elections are at risk. We are six months away.”
Jackie McVicarJanuary 18, 2019
“We will just do what we need to do to help people in need,” said Antonio Fernandez, C.E.O. of Catholic Charities for the Archdiocese of San Antonio.
Emma Winters January 18, 2019
The study found Latina immigrant women in Arizona who were pregnant during the contentious S.B. 1070 passage had babies with lower birthweight compared with those in prior years. Average birth weights did not decrease among U.S.-born white, black or Latina women during the same time.
J.D. Long-GarcíaJanuary 18, 2019