By Mike Dorf
My new Verdict column discusses Justice Scalia's already-(in)famous description of Section 5 of the Voting Rights Act (VRA) as a form of "racial entitlement" during the oral argument in Shelby County v. Holder. I defend him--after a fashion--from the charges of racism and racial insensitivity, explaining that he has been making the same claim about race-based affirmative action for years. Thus, I say that, in context, Justice Scalia was simply arguing that the VRA leads to the creation (and perpetuation) of identifiably black voting districts. On the merits, I think this is an insufficient basis for invalidating the VRA--not least because Sec. 5 of the VRA is mostly not about congressional districts. So I think Justice Scalia's point is something of a non sequitur and I accordingly judge it not-racist-but-still-problematic.
What if I'm wrong? One view--favored by commentators like Jeffrey Toobin and Rachel Maddow--is that Justice Scalia is somehow "losing it." As one would expect, given their respective places in the political spectrum, Toobin (who appeals to a general, albeit liberal-leaning, audience) finds this possibility sad, whereas Maddow (who appeals to a partisan liberal audience) simply treats it as an occasion for condemnation. But the general tenor of their remarks is the same. In this view, Justice Scalia has lately become openly partisan, reveling in sticking it to his political opponents. In addition to the complaint about "racial entitlement," in this view Justice Scalia's dissent in last Term's Arizona v. United States is another example of his going partisan. At the time, Toobin characterized the dissent's seemingly gratuitous shots at the Obama Administration as Justice Scalia outdoing his own well-earned "reputation for engaging in splenetic hyperbole."
I'm not so sure that anything has changed. There's a tendency to think that the most recent episodes (of just about every phenomenon) are the most severe, even when there is no long-term trend. It's not clear to me that Justice Scalia's more recent statements are in fact more severe than earlier ones--especially in light of my interpretation of the Shelby County statements as at least intended in good faith. Remember, we are talking about a Justice who wrote in 1996 that there's no special reason to worry about discrimination against gay people because, among other things, they "enjoy enormous influence in American media and politics." (I told you I was only going to defend Justice Scalia "after a fashion.")
In any event, I think we would need a whole lot more evidence to conclude that Justice Scalia has somehow "snapped" in some way. Certainly nothing about Justice Scalia's public performance of his duties comes close to the evidence that Professor Garrow marshaled of "mental decrepitude" among other Justices throughout history.
To my mind, the real change has been occurring slowly and systemically. I believe that Justice Scalia still has all of his marbles but that nowadays there is greater distance between the respective liberal and conservative weltanschauungs than in the past.
Here's an example. Back in 2010, at the height of the Tea Party's power, I read that Virginia Thomas, who is married to Justice Thomas, was a fan of Rush Limbaugh and intrigued by Glenn Beck, to whom she was "listening carefully." My first thought was to discount this bit of information because spouses often have different views from one another and while of course Justice Thomas is extremely conservative, that doesn't mean that he takes any guidance from such preposterous characters. But then I remembered that Justice Thomas officiated at one of Limbaugh's weddings in 1994 and was a guest at Limbaugh's most recent wedding in 2010. (Insert one/man/one/woman joke here.)
Liberals like me think of Limbaugh and Beck as buffoonish demagogues, but in the modern conservative movement--including its judicial arm--they are mainstream thinkers who perhaps express their views more colorfully than others but in so doing nonetheless fall within the conservative mainstream. Hence, it really shouldn't be surprising that Justice Scalia occasionally sounds a bit like Rush Limbaugh. The real mystery may be why he doesn't sound like Limbaugh more often.