How Casual Racism Can Help Supreme Court

Why Scalia's "racial entitlements" remark may help the high court in the long run.

Supreme Court Justice Antonin Scalia (Getty Images)
Supreme Court Justice Antonin Scalia (Getty Images)

(The Root) — Every now and then someone says something so colossally stupid and offensive that the offended party ends up thanking him. The reason? Because the offending remark ends up costing the offender what remaining credibility he or she had, and ultimately ends up benefiting the offended party. One of the most famous examples of such foot-in-mouth disease was when Houston City Councilman Jim Westmoreland, who is white, made a joke about naming an airport in honor of deceased black Rep. Mickey Leland “N–ger International.” The incumbent shortly thereafter lost his seat to an African-American candidate.

I was reminded of Westmoreland when Supreme Court Justice Antonin Scalia set cyberspace on fire with his questions and remarks during oral arguments in Shelby County v. Holder to determine the constitutionality of Section 5 of the Voting Rights Act. The section, which civil rights proponents consider essential to preventing voter disenfranchisement among communities of color, particularly in the South, was described by Scalia as constituting “racial entitlements” and creating “black districts by law.” Though his comments did not rise to the level of blatant racism that Westmoreland’s did, Scalia said dismissively, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” He continued: “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?” 

Justice Clarence Thomas, the court’s lone black justice, continued in his tradition of saying nothing during oral arguments, thereby reinforcing the opinions of those who question whether he was actually nominated to the court for his intellectual heft or merely as some sort of racial quota (ironic, since he opposes them). However, the court’s swing vote was not silent. Justice Anthony Kennedy dimmed the hopes of civil rights activists by questioning the need for such stringent civil rights measures in 2013. But while many supporters of the Voting Rights Act were discouraged or horrified by the latest developments from the court, I couldn’t help thinking what a difference these turn of events may make for the better in the long run.

Thanks to this case, and particularly Scalia’s insulting and condescending comments and tone, President Obama will feel newfound pressure to ensure that his next nominee to the high court is one with a demonstrated commitment to civil rights. Even more important, the president will be unable to avoid calls from progressives, and particularly black people, to appoint an African American to the court the moment he has the opportunity to do so. (I have written about potential candidates before.)

President Obama won’t be able to pretend that such characteristics — culture, life experience, including racial background — are completely irrelevant to the process, because Scalia and Kennedy reminded us that they are not. So it’s possible that a year from now, regardless of the outcome of Shelby County v. Holder, progressives may find themselves thanking Scalia for opening the door to a more progressive court in the future.