“It is plainly true that in our society blacks have suffered discrimination immeasurably greater than any directed at other racial groups.”
These were the words of Justice Antonin Scalia, written in his concurring opinion in the 1989 Supreme Court case Richmond v. J.A. Croson Co. The city of Richmond, Va., was sued over its policy of requiring that a certain percentage of city contracts be set aside for minority-owned businesses.
Do these words written by Justice Scalia in the Croson case sound racist? Obviously, they are not. Yet, somehow Justice Scalia has been deemed a racist for a remark he made during oral arguments on Feb. 27 in the Supreme Court case of Shelby County v. Holder.
This is a Voting Rights Act case, in which the constitutionality of Section 5 is being disputed. Section 5 calls for “pre-clearance” in certain Southern states and parts of other states around the country. “Pre-clearance” is a determination by the Justice Department of whether a voting change was discriminatory in purpose or effect. The origin of this practice lies in combating voter-discrimination practices that were used in the Old South. Shelby County, Ala., claims the policy is antiquated — even though Congress has repeatedly renewed it.
At one point, Justice Scalia observed that the Voting Rights Act would always be renewed by Congress, whether needed or not, because of “a phenomenon that is called perpetuation of racial entitlement.”
The knee-jerk response to this observation was righteous indignation. The invective directed at Justice Scalia was in itself bigoted. A Los Angeles Times commentary compared him to a third-rate radio talk-show host. Ironically, an MSNBC talk-show host, who goes by the single name Toure, claimed Justice Scalia’s comments were “completely racist.”
Joan Walsh, writing in Salon, echoed the Scalia talk-radio comment. Yet, risibly, she admitted, “To be fair court conservatives question whether it’s fair to single out the South for special, in-advance scrutiny of its changes to voter laws.”
Justice Scalia said, “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.”
Later, Justice Scalia reiterated this concern. He said, “I don’t think anybody is contesting that it’s more effective if you use Section 5. The issue is, why just in these states. That’s it.”
Yet none of these statements by Justice Scalia made it into the mainstream media. Instead, the media chose to distort his arguments.
The claims of racism directed against Justice Scalia are spurious. They are a political ploy to influence the court.
The hypocrisy of the liberal view was exhibited in this case by Justice Sonia Sotomayor. Defending Section 5, she said, “But the form of discrimination is still discrimination if Congress has found it to be so.”
Would Justice Sotomayor have us believe that she would never find an act of Congress dealing with discrimination unconstitutional? Wouldn’t she declare unconstitutional something that Congress said was not discrimination — if she believed it was?
Of course, she would.
I met Justice Scalia some time ago. While chatting, I learned our ancestors come from the same province in Sicily. We both know, all too well, the discrimination the Sicilian — and Catholic — immigrants encountered in America. Indeed, the single largest mass lynching in American history was that of 11 Sicilians in Louisiana in 1891.
Justice Scalia is enormously sensitive to discrimination. Once again, referring to his opinion in Croson, he wrote, “The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency — fatal to a nation such as ours — to classify and judge men and women on the basis of their country of origin or the color of their skin. A solution to the first problem that aggravates the second is no solution at all. I share the view expressed by Alexander Bickel that “[t]he lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: Discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong and destructive of democratic society.”
Michael P. Tremoglie is vice president of Academia Res Publica, a legal and public policy organization in Italy.