Did Scalia Tip His Hand In Major Voting Rights Case?

Justice Antonin Scalia this week escalated his criticism of the Voting Rights Act ahead of a Supreme Court decision expected within the next two months — raising the likelihood that he and perhaps a majority of justices will overturn the landmark law.

Speaking on Monday night at the University of California’s Washington Center, in D.C, Scalia described a centerpiece of the 1965 law as an “embedded” form of “racial preferment,” in remarks captured by the Wall Street Journal. He reportedly warned that the law would be reauthorized into perpetuity unless the courts invalidate it.The Supreme Court is poised to rule on the constitutionality of the Voting Right Act’s Section 5, which requires state and local governments with a history of racial discrimination to receive federal pre-approval before changing their voting laws. Civil rights advocates warn that portion of the law is key to protecting minorities from discrimination.

During oral arguments in the case, Shelby County v. Holder, in late February, Scalia said that portion of the law — and its repeated renewal by Congress — reflects a “perpetuation of racial entitlement.” The other conservatives justices were also deeply skeptical that Section 5 of the law remains valid given the changing times.

On Monday, Scalia also characterized the law as unfair because federal law doesn’t make similar efforts to protect whites from racial discrimination, according to the Journal.

Rick Hasen, a law professor at UC-Irvine School of Law, observed that it’s unusual for a justice to comment on the merits of cases that are pending before the Court.

“The remarks are not much different from what Justice Scalia said at oral argument in the Shelby County case,” he wrote, “but I find it pretty remarkable that he’d make these comments off the bench while Shelby County remains pending.”

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