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Conservative Supreme Court Justice Antonin Scalia, a man who has long railed against activist judges who use their judicial power to make policy that should be left to elected officials, now appears ready to gut the Voting Rights Act because it "is not the kind of question you can leave to Congress."
Apparently it is only judicial activism when a liberal judge makes policy.
At issue is the constitutionality of "Section 5" of the Voting Rights Act of 1965. It applies to nine states in the South and Southwest, and to many more counties and municipalities in other states. What they all have in common is a history of trying to use voting laws to block the vote of blacks and other minority citizens or diminish their electoral influence.
The section's "preclearance" requirement - forcing these jurisdictions to get federal approval for changes in voting procedure to protect against voter discrimination - is inarguably onerous. But the Supreme Court has repeatedly upheld it, citing the Fourteenth Amendment's mandate that "no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States" and the Fifteenth Amendment's requirement that the right to vote "shall not be denied by … any state on account of race (or) color …"
Congress has extended the Voting Rights Act several times, most recently in 2006 with the House approving it 390-33 and the Senate unanimously.
But despite the solid foundation of judicial precedent and overwhelming legislative support, Justice Scalia indicated during arguments last week that he knows better:
"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."
In other words, if a bunch of spineless elected leaders are not ready to end this outdated law, he will.
The conservative justices displayed their willingness to legislate in the Citizens United decision when they ignored a century of precedent and found that Congress did not have the constitutional authority to regulate the corrosive power of big money in the nation's election process. But at least in that case the conservatives offered a First Amendment defense for giving corporations the right to try to buy elections. In the latest case, Shelby County (Alabama) v. Holder, Justice Scalia doesn't even bother erecting a judicial façade for his willingness to displace the will of Congress.
Then there is the absurdity of his contention that assuring the right to vote is a "racial entitlement."
The conservative justices made it clear in their statements they don't like the old formulas the law uses to judge which jurisdictions "Section 5" should cover, contending it should be updated or abandoned. Some of their questions seemed to suggest that racial discrimination in voting has ended. But that is an assessment they must leave to the legislative and executive branches.
And the reality is that efforts continue to try to inhibit the minority vote, most recently through a series of voter identification laws passed across the country. State legislatures also draw district lines to dilute the influence of minority voters.
As Justice Elena Kagan noted, "Under any formula that Congress could devise it would capture Alabama."
Once again a decision may rest with the swing vote of Justice Anthony M. Kennedy. He, and all the justices, should vote to again uphold the constitutionality of the Voting Rights Act, recognizing that the authority to change it or end it must be left to elected leaders.