Justice Antonin Scalia's recent comments about "racial entitlements" during oral argument on the challenge to the Voting Rights Act in Shelby County, Alabama v. Holder have set off a storm of controversy. Scalia's observations do not seem consistent with those of global employers who are seeking to redouble their efforts to attract and retain minorities, to foster equitable treatment of employees, and to renew their commitment to ethical and legally compliant business practices.
Amendments to Voting Rights Act
At issue in Shelby County is whether Congress, in 2006, properly extended for 25 years the act's "Section 5 preclearance obligations." Those obligations, first implemented when the act was passed in 1965, require that any changes to the voting procedures of certain southern states (or "covered jurisdictions") with the worst historical records of racial discrimination must be vetted by the Attorney General or a special three-judge district court in Washington.
The 2006 amendments to the Voting Rights Act passed Congress almost unanimously (390-33 in House, and 98-0 in Senate); yet Scalia, who has vehemently argued against "judicial activism," seems to believe that Congress went beyond its authority in reenacting the law. As The Economist recently put it, Scalia "apparently finds the Voting Rights Act to be a uniquely egregious specimen of legislative incompetence."1
Challengers to the 2006 extension assert that Congress acted without constitutional authority. They claim that the "current burdens" the act imposes are not "justified by current needs," and question whether its "disparate geographic coverage is sufficiently related to the problem that it targets." They further allege that, "given the federalism costs section 5 imposes, the provision can be justified only by contemporary evidence of the kind of unremitting and ingenious defiance that existed when the Voting Rights Act was originally passed in 1965."2
The D.C. Circuit's decision affirming the constitutionality of the 2006 extension sets forth the federal interests that led to the passage of the act in 1965. The court pointed out that the Constitution's framers "feared not state government, but centralized national government, long the hallmark of Old World monarchies."
Nevertheless, faced with threats to individual liberty, after the Civil War, the 13th Amendment limited state power by prohibiting slavery. The 14th Amendment prohibited deprivation of life, liberty or property without due process of law, and required equal protection of the laws. And the 15th Amendment declared that "[t]he right of citizens...to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," and vested Congress with "power to enforce this article by appropriate legislation."
All three of these post-Civil War amendments had the specific intent to make clear to southern states that the federal government now required them to respect and adhere to national policies of equal rights and equal protection under federal law. Moreover (if that wasn't already sufficiently clear in the text of each amendment), they each explicitly extended authority to Congress to enforce the rights newly extended (and the requirements newly imposed on states) in those three amendments.
Despite these advances, discrimination in the electoral process continued, and certain southern states notoriously implemented such devices as poll taxes, literacy tests, grandfather clauses, and property qualifications, in order to keep blacks from voting. As the circuit court explained, "also widely employed, both immediately following Reconstruction and again in the mid-twentieth century, were laws designed to dilute black voting strength, including laws that gerrymandered election districts, instituted at-large elections, annexed or deannexed land...and required huge bonds of officeholders."3
The Voting Rights Act of 1965 was a response to these abuses. When first passed, the act contemplated that Section 5 would remain in effect for five years. But Congress renewed the provisions, first in 1970 (for five years), then in 1975 (for seven years), in 1982 (for 25 years), and again, in 2006, for another 25 years. Beginning in 1982, any jurisdiction (including a political subdivision of a state) could "bail out" of the act's requirements if it could show that it had a "clean" voting rights record over the previous 10 years.
Interestingly, while the problem has, to everyone's agreement, diminished since passage of the act, the margin of victory for renewal in Congress has steadily increased. Initially, there was strong opposition to the act's passage; but as time went on, opposition evaporated, to the point where the act's 2006, 25-year renewal passed almost unanimously.
The act's renewal virtually without opposition appears to have particularly stuck in Justice Antonin Scalia's craw. During the Solicitor General's oral argument, he said, "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." But, focusing on Congress' steadily increasing level of support for the act, he said: "I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement." He continued, "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes."
Justice Scalia expressed doubt that any member of Congress could expect to be reelected if he or she voted against the act; and, he said, "Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?"
When Shelby County's lawyer, Bert Rein of Wiley Rein, returned for his rebuttal, Justice Sonia Sotomayor fairly pounced. She asked: "Do you think that the right to vote is a racial entitlement in Section 5? ...Do you think Section 5 was voted for because it was a racial entitlement?" The response didn't come right away, but in response to a question from Justice Stephen Breyer, he declared: "I think the problem to which the Voting Rights Act was addressed is solved. You look at the registration, you look at the voting. That problem is solved on an absolute, as well as, a relative basis."
This comment led to an exchange with Justice Elena Kagan, who asked: "You said the problem has been solved. But who gets to make that judgment really? Is it you, is it the Court, or is it Congress?" Rein's response—that it is up to the court—led Kagan to say: "Well, that's a big, new power that you are giving us, that we have the power now to decide whether racial discrimination has been solved? I did not think that that fell within our bailiwick."
The Solicitor General delicately characterized Scalia's point as "entrenchment." But the justice's comments may have unwittingly pushed the body politic back toward the center. Justice Anthony Kennedy, the key swing vote, seemed to be on the side of the challengers during oral argument, but Scalia's "entitlement" comment may have created an opportunity for him to rethink his position.
In stark contrast to Scalia's explicit and jarring disapproval of the objectives of the Voting Rights Act are the efforts of global employers to assure their employees of their commitment to "corporate justice."
I recently participated in a forum on whistleblower laws and corporate governance. Other speakers included the chief compliance officer and the head of human resources for two major multinational companies. Each of these individuals stressed what they termed "corporate justice"—the need for global employers to assure their employees that they are committed to ethical and non-discriminatory business practices; to the fair and equitable treatment of employees; and to demonstrate that if employees raise a concern about the company's business or employment practices, it will be investigated and resolved in good faith.
Neither of these individuals—and, from my experience representing global employers, very few multinationals—resent, underestimate, or second-guess this commitment. To the contrary, companies recognize ethical conduct as a cornerstone of their corporate identities, and strive to preserve and indeed project this culture throughout their operations, worldwide.
One senior compliance officer stated: "We literally beg [employees] to report concerns. We get out in front of as many employee groups as we can so they can see how dedicated we are to hearing from them." He described an expansive system of training for executives across the company, worldwide, to assure that ethical practices are imbued in the culture.
There is a difference, of course, between a challenge to the constitutionality of a law to protect voting rights and a corporation's response to extensive legislation creating a class of whistleblowers and putting corporations' conduct under a microscope. But no general counsel could or would assert that equal employment opportunity, or their company's pursuit of integrity in business practices and legal compliance, is an over-reaction to an "entitlement" that does not deserve renewal or recommitment.
Philip M. Berkowitz is a partner and U.S. cochair of Littler Mendelson's international law practice; he is based in the New York office. Nancy Kassop, a professor and chair of the political science department at the State University of New York at New Paltz, provided comments in the preparation of this article.
1. See The Voting Rights Act: Antonin Scalia's uber-activitism," The Economist, http://www.economist.com/blogs/democracyinamerica/2013/02/voting-rights-act. That article asserts that Scalia's position is inconsistent with his prior arguments against judicial activism, for example, in the 1990 euthanasia case Cruzan v. Missouri, when he ruled that the decision whether to decide when a patient's life may be ended is not up to judges, but is up to "the citizens of Missouri…, through their elected officials." Id. See Cruzan v. Missouri, 497 U.S. 261 (1990)
2. Shelby County, Alabama v. Holder, 679 F.3d 848 (D.C. Cir. 2012).
3. Id., quoting Shelby Cnty. v. Holder, 811 F.Supp.2d 424, 428 (D.D.C. 2011) (internal quotation marks omitted).
Philip M. Berkowitz is a shareholder and U.S. co-chair of Littler’s International Law Practice Group. He is based in the firm’s New York City office. This article is reprinted with permission from the March 14, 2013 issue of the New York Law Journal. © ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.