National media tend to assume conservative Justice Antonin Scalia's vote in the upcoming Voting Rights Act case - Shelby County v. Holder - is a foregone conclusion because of his decisions on other questions that involve race, such as school desegregation. But Scalia's approach to remedies for impermissible racial discrimination, the harm that the Voting Rights Act addresses, has respected prior rulings and Congressional action, a noteworthy position considering the constitutionality of the Voting Rights Act has been repeatedly upheld.
To be clear: traditional swing-vote Justice Anthony Kennedy is more amenable to legislation and policies that take race into account than Justice Scalia. Unlike Scalia, Kennedy has explicitly disavowed Chief Justice John Roberts' radical request that the Court refuse to approve any government recognition of race, ever. Therefore, it is understandable that the media focuses on Kennedy when speculating over which conservative Justice might uphold the "preclearance" provision within the Voting Rights Act - Section 5 - that requires states with a history of racial discrimination submit election practice changes for federal review and approval.
For example, The New York Times reported the reasons that Kennedy, who has rejected the ahistorical "colorblind" approach to constitutional law even as he struck down specific school integration plans, might also reject the challenge to the constitutionality of Section 5:
The issue in Shelby County is whether Section 5 of the Voting Rights Act, viewed as the nation's most effective civil rights law, remains necessary to prevent racially biased voting laws in nine states and parts of seven others with egregious histories of discrimination against minority voters.
In the Shelby County case, as a federal trial court and a federal appeals court found, there is no room for equivocation [as in recent school desegregation cases]. If Justice Kennedy votes to strike down Section 5, he will be calling a halt to an unfinished effort to end what the Supreme Court once called "an insidious and pervasive evil."
Congress gathered an enormous amount of evidence in 2006 about the persistence of voting discrimination in covered jurisdictions. It found that discrimination was still heavily concentrated in those places and so widespread that case-by-case litigation -- what Justice Kennedy has called "very expensive," "very long" and "very inefficient" -- is inadequate.
Without Section 5, from 1968 through 2004 more than 1,500 discriminatory voting changes would have gone into effect. And last year, Section 5 blocked attempts to discriminate against voters in many parts of the country.
But these reasons for why Section 5 is still constitutionally justified might also satisfy Scalia's approach in the last decade to long-standing antidiscrimination law. In 2004, Scalia announced in Tennessee v. Lane that he would defer to Supreme Court precedent in future racial discrimination cases where he has to consider the extent of Congress' power in enacting statutes such as the Voting Rights Act. In the 2006 Voting Rights Act case of LULAC v. Perry, Scalia applied this approach in his deferential treatment of Section 5's constitutionality. As recounted by election law expert and Professor of Law and Political Science Nathaniel Persily:
There are three reasons, it seems, why Justice Scalia believes compliance with Section 5 is a compelling state interest. First, he relies on precedent, echoing his opinion in Tennessee v. Lane, in which he suggested that for the sake of stare decisis he would relax his review of the strictures of congressional power when race was involved. He cites the Court's decision in South Carolina v. Katzenbach, emphasizing that "[w]e long ago upheld the constitutionality of § 5." Second, although he admits in a footnote that no party in these cases raised an as-applied constitutional challenge to Section 5 and he assumes its constitutionality, he describes Section 5 in almost glowing terms as legislation that uses race "to remedy identified past discrimination" and "applies only to jurisdictions with a history of official discrimination." Besides the race riot examples, Justice Scalia had always clung to the view that narrow race-conscious remedies for individual victims of discrimination could be constitutional. Third, he argues that Section 5 must be a compelling state interest because, if it were not, "then a State could be placed in the impossible position of having to choose between compliance with § 5 and compliance with the Equal Protection Clause."
Persily qualified his analysis of Scalia's "remarkable" favorability to Section 5 by stating he was still pessimistic the conservative Justice would uphold this portion of the Voting Rights Act if faced with the challenge directly, as he is in Shelby. However, in the interim between the LULAC decision and today, Scalia will have even more documented evidence of voter suppression in violation of the Voting Rights Act to consider, as described in the recent Times article and confirmed by federal courts this past year.
Furthermore, even for antidiscrimination statutes that Scalia feels produce "puzzling results," Scalia held in the 2010 civil rights case of Lewis v. Chicago that "it is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted...If that effect was unintended, it is a problem for Congress, not one that federal courts can fix."
Scalia's repeated deference to the decisions and legislation of Congress for combating racial discrimination, pursuant to the powers granted under the Fourteenth and Fifteenth Amendments, should give media pause before automatically assuming his vote in rejecting the current challenge to the "crown jewel" of civil rights law is lost. Indeed, just last year, in Coleman v. Court of Appeals of Maryland, Scalia once again reminded observers that out of respect for long-standing civil rights law, he still treats legislation effectuating the Reconstruction Amendments' ban on racial discrimination deferentially.
If Scalia meant what he said, Kennedy might not be the only swing-vote in Shelby. The media should keep that in mind as they determine whether the Supreme Court will strike down a provision of the Voting Rights Act repeatedly reauthorized by Congress and upheld by the Court. They've counted to five wrongly before.