"One moves swiftly and imperceptibly from a world in which affirmative action can't be ended because its beneficiaries are too weak to a world in which it can't be ended because its beneficiaries are too strong."
JUSTICE SCALIA: Indeed, Congress must have found that the situation was even clearer and the violations even more evident than originally, because originally, the vote in the Senate, for example, was something like 79 to 18, and in the 2006 extension, it was 98 to nothing. It must have been even clearer in 2006 that these States were violating the Constitution. Do you think that's true?
MR. REIN: No. I think the Court has to - ...
JUSTICE SCALIA: Or decided that perhaps they'd better not vote against it, that there's nothing, that there's no -- none of their interests in voting against it. ...
JUSTICE SCALIA: That will always be true forever into the future. You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers which the Constitution preserves to them. So, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity. ...
JUSTICE SCALIA: Well, maybe it was making that judgment, Mr. Verrilli. But that's -- that's a problem that I have. 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. The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a -- in a time when the need for it was so much more abundantly clear was -- in the Senate, there -- it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don't think that's 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.
I'm interested in who has written about "perpetuation of racial entitlement" -- obviously, that's what Caldwell is writing about, Sowell has written about the subject, I have -- but I don't see the phrase many places in Google Books.
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 reenacted 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. And even the Virginia Senators,
they have no interest in voting against this. The State government is not their government, and they are going to lose -- they are going to lose votes if they do not reenact the Voting Rights Act. Even the name of it is wonderful: The
Voting Rights Act. Who is going to vote against that in the future? ...
Scalia's insights have evoked howls of protest: how dare an evil old white man favor equal treatment under the law. Doesn't he know he's a loser? And what's he talking about?
I think we've seen a real increase in my lifetime in what I call the Argument by Incomprehension: that if you don't understand the argument upon first hearing, then there's no reason to think about it.
More generally, human beings aren't very good at reasoning objectively about anything involving human beings. Instead, our natural reactions are to obsess over:
- Whose side am I on?
- Who is going to win?
- How can I ingratiate myself with the winners by putting the boot in to the losers?