Footnote Negative Four

Justice Scalia does not seem to think much of section five of the Voting Rights Act, its theory, its democratic support, or even the Act’s name. As with his comments at oral argument in the Obamacare cases, we should leave open the possibility that he will not decide according to the theory he suggested at argument. Indeed, I hope he won’t, because he seemed to be advancing the worst theory of constitutional law I have ever had the misfortune of hearing. My twitter-length summary upon reading the tanscript:

Scalia: Courts are needed to reinforce the representation of discrete, overly-sensitive majorities.

If you’re not a law nerd, this formulation may not trigger instant recognition. But more on that in a moment. Here is Scalia’s soliloquy on the Voting Rights Act and “racial entitlements”:

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 margin of congressional support for the Act has increased with each reauthorization even as the need for it has become less clear.] 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. 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. …. [T]his 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?

Put aside that the bail-out and bail-in provisions of section five contain the proper seeds of its own termination. The astounding thing about Scalia’s theory is just how closely it hews to the mirror image (or the bizarro world version) of the theory embbedded in and grown from the most famous footnote in the history of the Supreme Court, footnote four of Justice Harlan Stone’s opinion in United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938):

It is unnecessary to consider now … whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

This represented, finally, a statement of the Court’s understanding of the circumstances in which it should strike down legislative enactments. Strike down a law whenever the Court disagrees with it, and the Court becomes an unchecked super-legislature, the most tyrannical of government entities. Footnote four (and the rest of the Carolene Products decision) suggested that the Court should generally defer to legislative policy judgments. But the engine of democracy seizes when political majorities make repeat losers of political minorities. While normally one would expect losing legislative sides to protect themselves through shifting coalitions and other means (and by the fact that losers on one issue may be the winners on another), that may well not work when it comes to the interests of identifiable social minority groups who cannot so protect themselves.

When legislatures single out socially discrete minority groups for negative treatment, especially for the benefit of social majorities, courts should be suspicious, cast aside their usual deference, and give the law a much more careful look. The genius here is in the identification of a criterion for judicial review that seems legitimate, non-interventionist, and which is all about helping democracy to work better by reinforcing the democratic representation of minority groups who otherwise might be victims of a pathological form of majoritarianism. Plato’s caricature of democracy as a rule of the mob is possibly averted by giving this narrow and exceptional role to courts.

The principle of footnote four and it subsequent elaboration is not without criticisms and defenses, but it at least cabins the potentially awesome power of judicial review, cedes primary policymaking authority to legislatures, and reserves heightened judicial scrutiny for those situations in which we are truly suspicious democracy has gone off the rails because of its targeting of stigmatized groups.

Scalia’s theory is similarly grounded in helping to correct structural problems that the democratic process cannot handle on its own. But here, it’s political and social majorities who need the Court’s help. Democracy fails, the argument goes, when a majority is blocked from doing the very sensible things the majority wants to do because politicians are afraid of being called racists. Fear of being smeared or of appearing insensitive is now such a potential pitfall of democratic lawmaking that we just cannot trust that even a unanimous vote of the Senate represents the fair functioning of the political bodies. This “is not the kind of a question you can leave to Congress.”

The deep, apparently abiding suspicion that our representatives are trapped by political correctness and unable to engage in rational lawmaking is now a reason for a court to subject a law to heightened scrutiny. I guess I should at least be grateful to hear, finally, why some think courts are needed to overturn the judgments of politically accountable bodies that affirmative action is necessary (a situation in which there can be no rational fear that majorities are attempting to subjugate a social minority).

The point is this. We can rationally agree to disagree about the policies of the Voting Rights Act or the policies that give rise to affirmative action programs. Such disagreements are rightly the subject of intense political debate. But whether a court should be able to settle such matters on its own no matter how much support a law has among the public and its representatives, well that is another question entirely. It strikes me as positively bursting through the outer atmosphere of majoritarian victimhood to complain that our democratic discourse is so captured by the interests of racial minorities that it cannot be left to the People to decide how the vestiges of slavery and Jim Crow are best eliminated.