Supreme Court Justice Antonin Scalia waits to be introduced to speak at the American Enterprise Institute (AEI) October 2, 2012 in Washington, DC. The American Enterprise Institute and the Federalist Society held a book discussion with Justice Scalia, who co-authored the book 'Reading Law: The Interpretation of Legal Texts.' (Photo by Alex Wong/Getty Images)

Supreme Court Justice Antonin Scalia waits to be introduced to speak at the American Enterprise Institute (AEI) October 2, 2012 in Washington, DC. The American Enterprise Institute and the Federalist Society held a book discussion with Justice Scalia, who co-authored the book 'Reading Law: The Interpretation of Legal Texts.' (Photo by Alex Wong/Getty Images)

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Is the U.S. Supreme Court ready to kill the Voting Rights Act?  If Justice Antonin Scalia’s recent comments are any indication, we’re in for some trouble.

On Monday at the University of California Washington Center, the high court judge said that the law an “embedded” form of “racial preferment.”  According to Scalia’s interpretation, the Voting Rights Act was enacted as an emergency measure, but now amounts to a federal racial preference system for black people that discriminates against whites.

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?”

Disingenuous and simply wrong

The justice also criticized attempts to expand the number of minority groups protected by the federal government, noting that child abusers are a minority, but that doesn’t mean they deserve protection.

Scalia’s comments are historically and intellectually disingenuous and simply wrong.  And his words are as repugnant as the circumstances that required the Voting Rights Act in the first place.

The Voting Rights Act of 1965 was enacted by Congress to outlaw discriminatory practices used to deny African-Americans their right to vote.  It mirrors the language of the Fifteenth Amendment—which forbids federal and state denial of the right to vote based on “race, color or previous condition of servitude”—though the laws on the books were insufficient to overcome states intent on keeping black people away from the polls, out of power and out of luck.

The Voting Rights Act outlaws literacy tests, and also gives the Attorney General the power to challenge the use of poll taxes.  Passed during the height of the civil rights movement, the law and its predecessor, the Civil Rights Act of 1964, were responses to the wave of domestic terrorism in the South against activists who sought the right to vote and equal protection under the law.

The heart of the Voting Rights Act is at stake

At issue is Section 5, the heart of the Voting Rights Act, which requires certain states and localities, mostly in the South and Southwest, to obtain permission from the federal government before changing their election procedures.

In Shelby County v. Holder, a case currently before the Supreme Court, Shelby County, the mostly-white suburb of Birmingham, Alabama, claims Congress exceeded its constitutional authority when it reauthorized Section 5 in 2006 for 25 years.  The act was reauthorized with almost unanimous bipartisan support.  Signing the re-authorization, then-President Bush said the law was still needed.

“I don’t know what they’re thinking exactly,” said Justice Stephen G. Breyer of Congressional re-authorization of the Act.  “But it seems to me one might reasonably think this: It’s an old disease, it’s gotten a lot better, a lot better, but it’s still there.”

Yet section 5 is an abomination to conservatives who view the law as a federal intrusion on states’ rights, which, translated, means the right of states to treat their blacks the way they please.  Let us not forget the inane tests given to blacks in the Jim Crow days.  Black voters were asked questions as insulting as “How many bubbles in a bar of soap?” Or the local thugs—whether the police or the Klan—simply bashed in the heads of those Negroes who attempted to register to vote.

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