Sotomayor, Kagan Browbeat Scalia over Voting Rights Act Argument

Sotomayor, Kagan Browbeat Scalia over Voting Rights Act Argument

Liberals have accused Supreme Court Justice Antonin Scalia of being the court’s resident bully, but when two liberal female Suprem Court Justices–Sonia Sotomayor and Elena Kagan–this week tried to browbeat Scalia and lawyers arguing against the Voting Rights Act’s Section 5 pre-clearance requirement, the mainstream media hailed their efforts.  

In oral arguments in Shelby County v. Holder on Wednesday, Scalia made the point that members of Congress have no reason whatsoever to vote against the extension of the Voting Rights Act and that he was “fairly confident it will be reenacted in perpetuity unless–unless a court can say it does not comport with the Constitution.”

“I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement,” Scalia said

Scalia’s point was that once a bill has the effect of ensuring that minority candidates get elected from “minority” districts, it is almost impossible, in the political system, to vote against extending the act. 

“Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “I don’t think there is anything to be gained by any Senator to vote against continuation of this act.”

Scalia said there were “certain districts in the House that are black districts by law just about now” and even the Virginia Senators “have no interest in voting against this” because they would lose votes “if they do not reenact the Voting Rights Act.” 

“Even the name of it is wonderful: The Voting Rights Act,” Scalia said. “Who is going to vote against that in the future?”

Sotomayor was not having any of it. 

Sotomayor, as a liberal Washington Post columnist noted, “allowed the lawyer for the Alabama county seeking to overturn the law to get just four sentences into his argument before interrupting him. “

When Sotomayor would not relent, Justice Anthony Kennedy had to say, in remarks directed at her, “I would like to hear the answer to the question.”

When the lawyer started talking, Kagan then interrupted him. And in what was described as a “breach of decorum,” Kagan interrupted Scalia’s questioning to argue with Scalia directly on the bench.

Sotomayor would not let Justice Samuel Alito get a word in as well, and Chief Justice John Roberts had to says, “Justice Alito,” to signal that he had the floor. 

And when the lawyer for Alabama was about to make his concluding arguments, Sotomayor allowed him four words–“Thank you, Chief Justice”–before aggressively interrupting him. 

“Do you think that the right to vote is a racial entitlement in Section 5?,” Sotomayor asked. 

Before he could explain, she interrupted by saying she had “asked a different question.”

“Do you think Section 5 was voted for because it was a racial entitlement?” Sotomayor asked.

And so it went, and the mainstream media that always describe Scalia as “acerbic” for his aggressive questioning did not judge Sotomayor and Kagan by the same standards. Instead, mainstream media outlets like the Washington Post said Sotomayor’s and Kagan’s performances proved they were “ready for battle.” 


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