Revisiting Scalia's Racial Entitlement SNAFU

It's a bad week for civil rights.  

As Adam Liptak reported in The New York Times, the U.S. Supreme Court yesterday heard oral arguments in yet another case concerning voting rights.  This one addressing "whether Arizona can require proof of citizenship from people seeking to register to vote in federal elections."  Additionally, as reported in The Atlantic Wire, the Supreme Court is likely to soon issue an opinion in the Abigail Fisher case - the case challenging the use of race in college admissions - and specifically at The University of Texas at Austin.

Learn more below the jump about how Antonin Scalia recently dismissed the right to vote as a mere racial entitlement.  
While the Supreme Court has often been the last safeguard of civil liberties in this country, providing a backstop where laws and individuals have failed, the Court is widely believed to be at its most conservative in a generation, with jurists such as Antonin Scalia dismissing the right to vote as a mere racial entitlement.

According to the Constitution Daily, during oral arguments concerning the constitutionality of the Voting Rights Act, Scalia proffered this piece of wisdom:

There is "a phenomenon that is called perpetuation of racial entitlement. ... 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."

I'm not a scientist, man

Scalia's putative ex cathedra pronouncement was a bold statement from the bench and a daring first foray into the social sciences.  The good justice, however, would be prudent to heed another conservative colleague, Marco Rubio, when wading into "science."  In November, when asked about the age of the Earth, Rubio famously replied:

"I'm not a scientist, man.  I can tell you what recorded history says, I can tell you what the Bible says, but I think that's a dispute amongst theologians and I think it has nothing to do with the gross domestic product or economic growth of the United States. I think the age of the universe has zero to do with how our economy is going to grow. I'm not a scientist. I don't think I'm qualified to answer a question like that."

Neither is Scalia.  The Oxford English Dictionary (as cited by Wikipedia, at least) defines the scientific method as "a method or procedure that has characterized natural science since the 17th century, consisting in systematic observation, measurement, and experiment, and the formulation, testing, and modification of hypotheses."  Scalia wasn't doing that.  He was freestyling.  

Freestyling or any other casual exposition on the science or other matters outside the law falls distinctly outside the purview of judges.  In fact, when it comes to considering and ruling on matters outside the law - namely science - prudence dictates that judges give the legislature deference in its own factual findings, not because the legislature is composed of experts, but because the legislature presumably has devoted considerably more time and resources to hear the testimony of experts and evaluate it.  This deference is called judicial restraint and is cited by conservatives displeased by "liberal judicial activism."  More importantly, it was practiced by judicial luminaries such as Oliver Wendell Holmes, Jr., and Louis Brandeis.  The judge's role is not to evaluate or pontificate about the science but to judge the process that gave that science the force of law.  If Scalia won't heed the gentleman from Florida, perhaps he could follow the example of his predecessors and defer to a Congress, which having heard the evidence in 2006, felt there was still a need to reauthorize the legislation and protect this right.


The other problem with relegating the right to vote to a mere entitlement, besides the complete impropriety of it, is just how wrong that statement is.  As the Constitution Daily stated, there is a fundamental difference between a right and an entitlement.  A right is something permanent and inalienable. A right is something which cannot be given or taken away (abridgments under certain circumstances, notwithstanding).  An entitlement is a handout.  It can be given, and it can be taken.   And if it can be taken from one group, it can be taken from any group. Including any group which includes Justice Scalia.  That factual situation is precisely what Abigail Fisher has argued led to her denial of admission to the University of Texas.  She has argued that her rights have already been stripped away.  With that argument before him, Scalia's use of the word entitlement was careless and can best be summed up thus:

"   "

Some might call it semantics.  But words have effects, and currently, those effects are chipping away at equality in this country broadly.  The New York Times yesterday featured an article by Columbia economist and Nobel Prize winner Joseph Stiglitz.  In the article, Stiglitz pointed to the increasing wealth and income inequalityin this country, and then looked to other countries for possible solutions to the problem.  It's a good piece, but the closing paragraph is remarkable:

"It is true that a legacy of discrimination - including, among many things, the scourge of slavery, America's original sin - makes the task of achieving a society with more equality and more equality of opportunity, on a par with the best performing countries around the world, particularly tricky. But a recognition of this legacy should reinforce our resolve, not diminish our efforts, to achieve an ideal that is within our reach, and is consistent with our best ideals."

Stiglitz ties the denial of fundamental rights to income and wealthy inequality in this country.  Now that a class of people who have fought for those rights and still struggles to gain a foothold are being crowded from the marketplace, would a pontificating judge crowd them from the ballot box as well?  

A good judge resists the temptation to expound on dearly held beliefs which contradict the evidence before him.  If, however, reason and evidence fail to suit the judge, and he prefers to hold and expound upon counterfactual beliefs, some exegesis is in order.  Merriam-Webster defines "pontificate" as an intransitive verb meaning "to speak or express opinions in a pompous or dogmatic way."  It also defines it as a noun meaning "the state, office, or term of office of a pontiff" or in the common parlance, the pope.  We have recently seen one pontificate abandon his lifetime appointment. Perhaps the good justice would be so kind as to relinquish his.  

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