By Moshe Marvit
fellow, The Century Foundation
cross-posted at Blog of The Century
During Wednesday’s oral argument in Shelby County v. Holder, Justice Scalia delivered a long rant expressing his irritation with the Voting Rights Act. Justice Scalia reminded everyone that when the Act was originally enacted in 1965, it was passed in the Senate by “double digits” (77-19, to be precise). In each subsequent renewal of the Act, the margin has increased; most recently, it was renewed in 2006, passing the Senate 98-0. Scalia rejected the obvious explanation for this trend, claiming that “I don’t think that’s attributable to the fact that it is so much clearer now that we need” the Act. Instead, Scalia opted for a post-modern skepticism: “I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.”
Scalia quickly added, “It’s been written about.” This qualification was perhaps intended to provide some political cover. After all, the phenomenon has a name and it’s been written about, so surely it must be true. Indeed, the Supreme Court is an institution built on precedent. That something has been written about matters a great deal.
What Justice Scalia failed to mention is that while the phrase does in fact appear several times in Supreme Court context, Scalia has been the one doing the writing in all but one instance.
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