"A Little More From The Chambers" by Charles P. Pierce at Esquire

A Little More From The Chambers

by Charles P. Pierce at Esquire


http://www.esquire.com/blogs/politics/antonin-scalia-racial-entitlement-022713?click=news

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WASHINGTON — It's become clear that Antonin (Short Time) Scalia's "racial entitlement" is going to be the primary noise-bite out of the Supreme Court today. It doesn't matter that whatever point Scalia was making was completely incoherent. By what possible standard is Section V of the Voting Rights Act a "racial entitlement"? Who, precisely, is being entitled? And to what? The Voting Rights Act does not confer a government benefit to any one race or another. It merely makes sure that the rights guaranteed under the 15th Amendment are not finagled with out in certain parts of the country that have proven, through history, as being deft at said finagling. The reason that African Americans have been the primary beneficiaries of this law is the simple fact that they were its primary victims. The Voting Rights Act doesn't privilege their votes over any others. It just guarantees that they can be cast, and that they will be counted. But Scalia doesn't care at this point whether he makes sense. He's just interested in throwing whatever rocks through whatever windows he can find. He called it a "racial entitlement" because putting those two words together in any context is bound to cause a reaction. He's one step away from calling Rush from behind the bench.

Also, too: it has become plain that, for the Roberts court, and for the Chief Justice from whom it bears its name, Citizens United is going to be the hill on which they die. It is central to its judicial legacy. It defines Roberts's tenure as chief justice. (When the Court declined to hear the so-called "Citizens United on steroids" case this week, it can be argued, it did so in order to protect the Citizens United ruling itself as a "moderate" decision in the field of campaign finance.) It cements into place principles — corporate personhood, money as speech — that prevailed during the previous Gilded Age, which also happened to be the period of history in which racial discrimination in the law, and especially at the ballot box, through Plessy v. Ferguson and its progeny. Plessy was decided by a Court that was pretending that it didn't know what it was doing, and that was completely heedless of the inevitable effect of its ruling. That was plain to Justice John Marshall Harlan, who wrote a howling dissent:

Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary.

If the Roberts Court declares Section V of the Voting Rights Act to be unconstitutional, as seems sadly likely, it will have complete a historically resonant parlay through which corporate influence over elections is enhanced while minority participation is made more difficult. This did not work out very well the last time, and it is unlikely to work out well now.


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