Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
Keep CounterPunch ad free. Support our annual fund drive today!

Fun and Games with Scalia and Roberts


There were two moments that purported to be moments of enlightenment in the case argued in late February 2013 in the United States Supreme Court.  One was an iteration of a clever legal theory and the other a little known and incorrect fact.  The legal theory was offered by Justice Scalia and the little known incorrect fact by Chief Justice Roberts.  The moments of enlightenment, if that they were, came during the oral arguments that the Court heard pertaining to the need for the continuation of Section Five of the Voting Rights Act of 1965.  That is the section of the Act designed to protect voting rights of minorities in jurisdictions where those rights were historically abridged by white officials.  The question before the Court was whether the need to protect the rights of minorities to vote still existed, given the open arms that all states now extend to voters of all colors and races.  (In 2012 a few states including, but not limited to Florida and Pennsylvania actually tried to make it harder for people to vote but they did it with the best of intentions. They were trying to prevent voter fraud that had not yet been detected but officials thought might be some day.)

Commenting on the fact that Congress had overwhelmingly reapproved section 5 of the Voting Rights Act when most recently called upon to do so, Justice Scalia explained that was not because members of Congress believed in the merits of the legislation but because they were intimidated by the phenomenon  that he called “the perpetuation of racial entitlement.” He  said that the only way the country can be protected from racial entitlements is if he and his colleagues on the Court say they are unconstitutional.  That is because, says Justice Scalia, members of Congress are very reluctant to be seen as withholding  support for a popular statute such as the Voting Rights Act that protects the voting rights of citizens. When it comes to balancing states’ rights with individual rights, Justice Scalia prefers states’ rights even if it may mean the occasional disenfranchisement or dilution of a voter’s rights. As he said during argument:  “ You have to show, when you are treating different States differently, that there’s a good reason for it.”  Protecting the right of a citizen to vote is not such a reason.

Chief Justice Roberts did not have to rely on the Scalia “cowardly Congress” theory to show why Section 5 was no longer important.  During the oral argument the Chief Justice asked the Solicitor General of the United States who was arguing in favor of upholding Section 5, if he knew which state had “the worst ratio of white voter turnout to African-American voter turnout.”  The Solicitor General, unprepared for such a question, confessed ignorance.  Later, Justice Roberts  asked the Solicitor General if he knew which state had the greatest disparity in registration and again the Solicitor General replied negatively.  Justice Roberts provided the answer to both questions.   He said it was Massachusetts. The answer the Chief Justice gave was wrong.

According to Massachusetts Secretary of State, William Galvin, Massachusetts has one of the highest voter registrations in the country.  A report in the Boston Globe disclosed that, irrespective of whether a neighborhood was predominantly white or predominantly black, the turnout of voters was almost the same.  In a predominately white neighborhood voter turnout was 68 percent and in the heart of Boston’s African-American community the turnout was 64 percent.  Commenting on the Chief’s statements, Mr. Galvin opined:  “I guess the point [Roberts] is trying to make is Mississippi is doing so much better they don’t need the Voting Rights Act. . . . [H]e shouldn’t be using phony statistics.  It’s deceptive, and it’s truly disturbing.”  (Mississippi made news in 1995 when it got around to ratifying the 13th Amendment to the U.S. Constitution that bans slavery.  Due to a clerical oversight the ratification only became official February 7, 2013. )

When a reporter called the Supreme Court to obtain evidence of the truth of the Chief Justice’s statement about Massachusetts, the spokeswoman for the Court referred the caller to the court transcript of the proceedings in which the statement was made.  In the lofty heights of the U.S. Supreme Court,  the ultimate authority for a false statement of fact made by a member of the Court is the false statement of fact found in the transcript of the proceedings.

The outcome of the argument is almost a foregone conclusion.  The only suspense is in waiting to find out if Massachusetts continues to be used to justify the ruling and whether the Court applies the Scalia Cowardly Congress theory to justify its ruling.  One thing seems certain-Scalia and Roberts will be the winners.  The voters will be the losers.

Christopher Brauchli is an attorney based in Boulder, Colorado. He can be reached at:

More articles by:

2016 Fund Drive
Smart. Fierce. Uncompromised. Support CounterPunch Now!

  • cp-store
  • donate paypal

CounterPunch Magazine


October 20, 2016
Eric Draitser
Syria and the Left: Time to Break the Silence
Jeffrey St. Clair
Extreme Unction: Illusions of Democracy in Vegas
Binoy Kampmark
Digital Information Warfare: WikiLeaks, Assange and the US Presidential Elections
Jonathan Cook
Israel’s Bogus History Lesson
Bruce Mastron
Killing the Messenger, Again
Anthony DiMaggio
Lesser Evil Voting and Prospects for a Progressive Third Party
Ramzy Baroud
The Many ‘Truths’ on Syria: How Our Rivalry Has Destroyed a Country
David Rosen
Was Bill Clinton the Most Sexist President?
Laura Carlsen
Plan Colombia, Permanent War and the No Vote
Aidan O'Brien
Mao: Monster or Model?
David Swanson
Barbara Nimri Aziz
Less Than Two Weeks
Victor Grossman
Suicides and Hopes and Fears
October 19, 2016
Dan Schiller – Shinjoung Yeo
The Silicon Valley Candidate
Mike Whitney
Trump Unchained
Paul Buhle
Criminalizing the Struggle: Incarceration and the Rise of the Neoliberal State
Linn Washington Jr.
Abusing the Abused: Philly Police Abuse Case Typifies All-Too-Common Misconduct by US Prosecutors
Terry Tempest Williams - Brooke Williams
Rejected by the BLM
Binoy Kampmark
Neither War Nor Peace: Shimon Peres, Israel and History
Patrick Cockburn
This Battle for Mosul Will Not Be the Last
Joyce Nelson
Trudeau Bullying on Trade Deal
Thomas Mountain
Revolutionary Islam and Regime Change in Ethiopia
Serge Halimi – Benoît Bréville
The Limits of Eloquence: the Failures of Barack Obama
Mel Gurtov
America’s Dangerous Moment
Jerry Kroth
Questions for Obama Before Leaving Office
Michael Garrity
America is a Nation of Laws: Collaboration and Its Discontents
October 18, 2016
Srećko Horvat
The Cyber-War on Wikileaks
Zoltan Grossman
Stop the Next President From Waging the Next War
Jim Kavanagh
Hillary’s Hide-and-Seek
Robert Fisk
After Mosul Falls, ISIS will Flee to Syria. Then What?
Ted Rall
The 4 Things Hillary Could Do To Close the Deal Against Trump
Pepe Escobar
Why Hillary Clinton is a Bigger Concern for China than Donald Trump
Colin Todhunter
World Wide Fund for Nature: Stop Greenwashing Capitalism, Start Holding Corporations to Account
David Macaray
Whiskey Workers Go on Strike: I’ll Drink to That
James A Haught
After the Election, Back to Important Things
Arturo Desimone
How a Selective Boycott Can Boost External Support for Palestinians
Russell Mokhiber
If Chris Wallace Asks About Street Crime He Should Also Ask About Corporate Crime
Mark Kernan
Moloch in Paris: on the Anniversary of COP21
Carol Dansereau
The Hillary Push: Manipulation You Can Believe In
Andre Vltchek
Will They Really Try to Kill the President of the Philippines?
Sean Joseph Clancy
The Wreckage of Matthew: Cuba and Haiti
October 17, 2016
Paul Street
Pick Your Poison? Presidential Politics and Planetary Prospects
Patrick Cockburn
US Allies are Funding ISIS (and Hillary Knew All Along)
David Swanson
What Hillary Clinton Privately Told Goldman Sachs
Fran Shor
A Rigged System?