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By Moshe Marvit
fellow, The Century Foundation
cross-posted at Blog of The Century

During Wednesday’s oral argument in Shelby County v. Holder, Justice Scalia delivered a long rant expressing his irritation with the Voting Rights Act. Justice Scalia reminded everyone that when the Act was originally enacted in 1965, it was passed in the Senate by “double digits” (77-19, to be precise). In each subsequent renewal of the Act, the margin has increased; most recently, it was renewed in 2006, passing the Senate 98-0. Scalia rejected the obvious explanation for this trend, claiming that “I don’t think that’s attributable to the fact that it is so much clearer now that we need” the Act. Instead, Scalia opted for a post-modern skepticism: “I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.”

Scalia quickly added, “It’s been written about.” This qualification was perhaps intended to provide some political cover. After all, the phenomenon has a name and it’s been written about, so surely it must be true. Indeed, the Supreme Court is an institution built on precedent. That something has been written about matters a great deal.

What Justice Scalia failed to mention is that while the phrase does in fact appear several times in Supreme Court context, Scalia has been the one doing the writing in all but one instance.

The concept of “racial entitlement” first appears in the 1980 case Fullilove v. Klutznick. In Fullilove, a plurality of the Court found a program that explicitly allocated a percentage of federal public works funding for minority-owned businesses to be constitutional. In dissent, Justices Stewart and Rehnquist argued that allowing set-asides based on race violated the 14th Amendment:

Most importantly, by making race a relevant criterion once again in its own affairs, the Government implicitly teaches the public that the apportionment of rewards and penalties can legitimately be made according to race—rather than according to merit or ability—and that people can, and perhaps should, view themselves and others in terms of their racial characteristics. Notions of “racial entitlement” will be fostered, and private discrimination will necessarily be encouraged.
Fifteen years after Fullilove, in Adarand Constructors, Inc. v. Peña (1995), the Supreme Court held that all racial classifications must pass strict scrutiny review. In a brief concurrence, Justice Scalia wrote:
To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
Scalia’s bizarre suggestion that the government abandon racial classifications and declare “American” a race highlights his fear of the link between racial classification and racial entitlement. He paints a bleak picture of the consequences of heading down this particular path. Later cases make clear that he believes America remains on this path.

Indeed, in the very next Court term, Justice Scalia sparred with one of the attorneys in Shaw v. Hunt, a case which considered the issue of racial gerrymandering. Scalia attempts to persuade the attorney to address the effects of “the racial entitlement theory,” arguing:

I mean, if you buy the proposition of racial entitlement, that is, it doesn't matter whether a particular black man has been discriminated against, that the object is the race as a whole has to be made good, why wouldn't that follow? It doesn't really matter what part of the State you're not properly creating the black district in, so long as you create a black district somewhere.
In 2003, Scalia once more plants the issue with then-solicitor general Ted Olson. In oral arguments for Gratz v. Bollinger, which ultimately ruled that the University of Michigan’s use of racial preferences in undergraduate admissions violated the 14th Amendment (and Title VI), Justice Scalia asked Olson:

[D]o you know whether any of those countries that Justice Ginsburg referred to that have gone down the road of racial preferences, racial entitlements, have ever gotten rid of racial preferences or racial entitlements? . . . Has it been the road ultimately to a color blind society or has it been the road to a society that has percentage entitlements for the various races?
Ted Olson took the cue and responded that “sadly” the road leads to the latter. The countries whose model Olson and Scalia said we must fear include Canada, the countries of the European Union, and South Africa.

Other than these discussions of “racial entitlement”—all but one by Justice Scalia—there are no other instances of any Supreme Court opinion or oral argument addressing the issue. A few lower court cases have raised the issue, but the “issue” has largely remained a personal peeve of Justice Scalia for at least a decade and a half. Luckily for Scalia, the longevity of his pet peeve now allows him to try to legitimize it by saying that “it’s been written about.”

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