Justice Scalia on the necessity of judges jumping in to save America from legislation that’s unlikely to be repealed through the political process:
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….
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.
Leaving aside the racial anxiety obvious in the highlighted sentences (black people are voting us into oblivion! to keep their “racial entitlements”!), can we just keep these statements in mind the next time Scalia drags out his hoary old “Do you really want nine judges making these decisions?” schtick?
(And before anyone complains that I’ve ellipsed out the substance of his argument (“You have to show, when you are treating different States differently, that there’s a good reason for it.”): (1) I was trying to make a specific point here, which is that Scalia is as activist and as eager to overrule the legislature as anybody else, and (2) his “substantive” argument here, if it can be called such, is IMO a loser in light of the text and history of the Fourteenth Amendment and, indeed, the history of Reconstruction generally, not to mention all sorts of precedent for treating states differently when they behave differently. Perhaps Justice Scalia would argue that we should ignore that context in favor of the overall constitutional-structural implication that the federal government should treat all states equally. Of course, even Scalia admits that the federal government can treat states differently when “there’s a good reason” — so what he’s really saying is that he’d like to substitute his judgment about what constitutes a “good reason” for that of the legislature. Which is exactly what he often disclaims any interest in doing.)