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: brauchli.56@post.harvard.edu.

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