Speaking for myself, it’s hard for me to read the sort of stuff Justice Scalia says these days without seeing red. As he’s aged, he’s tossed aside any pretense or desire to hide the fact that he sees himself as what originalists and advocates of judicial restraint are supposed to be against: namely, an appointed super legislator, contemptuous of Congress and happy to impose his own beliefs by judicial fiat. Hearing him rail about “racial entitlement” sounds more like you’re listening to some sort of talk radio blowhard than a Supreme Court Justice.
But who is he (and his fellow conservatives on the Court) helping at this point?It’s now generally recognized (and I think it’s accurate, but who knows) that the Republican drive to disenfranchise minority voters in 2012 backfired spectacularly. The country’s demography has apparently hit a tipping point wherein you piss off and activate more people than you gain by playing to racial animus, hostility to immigrants and attacks on voting rights.
Yet the Supreme Court is still stuck in the 80s and 90s era of the judicial politics of racial grievance and division. The Court now seems dead set on overturning Section 5 of the Voting Rights Act. After that we’ll have cases on marriage equality, voter ID, affirmative action. The judicial calendar is stuck in a feedback loop.
I don’t want to underestimate the real world damage that will be done by bad outcomes of these cases. It’s real. But the political valence of all these cases, the politics they generate, seems certain to keep the public mind focused on the politics of exclusion they embody and the political coalition that put them on the bench. And that’s real too.