JUSTICE SCALIA: Well, maybe it was making
that judgment, Mr. Verrilli. But that's -- that's a
problem that I have. This Court doesn't like to get
involved in -- in racial questions such as this one.
It's something that can be left -- left to Congress.
The problem here, however, is suggested by
the comment I made earlier, that the initial enactment
of this legislation in a -- in a time when the need for
it was so much more abundantly clear was -- in the
Senate, there -- it was double-digits against it. And
that was only a 5-year term.
Then, it is reenacted 5 years later, again
for a 5-year term. Double-digits against it in the
Senate. Then it was reenacted for 7 years. Single
digits against it. Then enacted for 25 years, 8 Senate
votes against it.
And this last enactment, not a single vote
in the Senate against it. And the House is pretty much
Now, I don't think that's attributable to the
fact that it is so much clearer now that we need this.
I think it is attributable, very likely attributable, to
a phenomenon that is called perpetuation of racial
entitlement. It's been written about. Whenever a
society adopts racial entitlements, it is very difficult
to get out of them through the normal political
I don't think there is anything to be gained
by any Senator to vote against continuation of this act.
And I am fairly confident it will be reenacted in
perpetuity unless -- unless a court can say it does not
comport with the Constitution. You have to show, when
you are treating different States differently, that
there's a good reason for it.
That's the -- that's the concern that those
of us who -- who have some questions about this statute
have. It's -- it's a concern that this is not the kind
of a question you can leave to Congress. There are
certain districts in the House that are black districts
by law just about now. And even the Virginia Senators,
they have no interest in voting against this. The State
government is not their government, and they are going
to lose -- they are going to lose votes if they do not
reenact the Voting Rights Act.
Even the name of it is wonderful: The
Voting Rights Act. Who is going to vote against that in