Does Scalia Want to
Pre-empt Congress or Not?
Moments later, Scalia was back making the contradictory argument that began: "This Court doesn't like to get involved in -- in racial questions such as this one. It's something that can be left--left to Congress."
After reciting a brief legislative history, Scalia returned to his concern that the Voting Rights Act had passed with so little opposition in 2006, leading up to the remarks that have since earned him such widespread, mostly hostile comment:
"Now, I don't think
that's [the favorable 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 reà «nacted 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?" [emphasis added]
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