Justice Antonin Scalia raised eyebrows when, in the midst of the Supreme Court argument over the Voting Rights Act, he said the landmark civil rights legislation was now the "perpetuation of racial entitlement."
I know that because I've read the transcript. And I've listened to the audiotape. But we should all be able to watch what was an important and pointed discussion on a matter of great importance.
While it's true Scalia said those words, the transcript makes clear that there was a bit more to his thinking. At stake in this case is whether nine states, primarily in the South, will be freed of government preclearance when changing voting procedures.
If the type of questions posed by the justices are any indication, it would appear that the Supreme Court seems poised to severely limit the act. The arguments and questioning were pointed, and evidenced a divide between the conservative and liberal jurists. And some of the most telling comments came from Scalia and Justice Sonia Sotomayor.
Scalia made the point that when the Voting Rights Act was initially passed in 1965 ("in a time when the need for it was so much more abundantly clear") there were "double digits" against it in the Senate, whereas in the last enactment, in 2006, there was not a single vote in the Senate against it. He said he didn't "think that's attributable to the fact that it is so much clearer now that we need this." Instead, he said, it was attributable to "a phenomenon that is called perpetuation of a racial entitlement."
"Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process," he said. In other words, Scalia was questioning how, and whether, the bestowing of a benefit based on race could ever be undone. "Even the name is wonderful: the Voting Rights Act. Who is going to vote against that in the future?"
Voting, of course, is not a racial entitlement, and Scalia should not have suggested it was. (His inquiry as to whether we can ever unwind a racial preference is a separate and intriguing question.) Sotomayor was angered by the entitlement comment. And when she had the opportunity to question the lawyer for Shelby County, Ala., who was challenging the law on the basis that it was no longer necessary, she framed a question that seemed more intended for Scalia than the litigant:
"Do you think that the right to vote is a racial entitlement in Section 5?" she inquired. "Do you think that racial discrimination in voting has ended, that there is none anywhere?"
Courtroom observers say that when asking the question she was actually looking at Scalia, not the lawyer. That's an insight we should all be able to see for ourselves on televisions or iPads. In the same way we get to evaluate the facial expressions and body language of President Obama or House Speaker John Boehner when they are performing their official duties, we should be able to see the justices. Except the Supreme Court still won't allow cameras in its courtroom.
When going through confirmation in 2009, Sotomayor said she liked the idea of having cameras in the courtroom. "I have had positive experiences with cameras," she said. "When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered."
But more recently, she expressed a change of heart, telling Charlie Rose:
"I don't think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing. They speculate about 'Oh, the judge favors this point rather than that point.' Very few of them understand what the process is, which is to play devil's advocate."
Her answer is a problem. Even if some Americans couldn't follow the arguments, that's no reason to shut any of us out. Frankly, that's an argument for more sunshine. What better way to educate the public than to allow us a video feed?
And after the argument on the voting-rights case, I'll bet Sotomayor wishes a camera had recorded Scalia's intemperate remark so that it could be viewed, and not just read or heard.
Arlen Specter was a champion for cameras in the courtroom. On Dec. 6, 2011, the retired senator testified before a subcommittee of the Judiciary Committee he once chaired, noting that the Supreme Court chamber has room for just 250 visitors, each of whom can stay for only three minutes.
"Since the Supreme Court of the United States decides the most important issues facing America, its open proceedings should be televised to inform the public how its government operates," he said.
Specter, who participated in 14 nomination hearings for proposed justices, made it a habit to question nominees about their view on the matter.
"The court decides who should live in abortion cases, who should die in the death-penalty cases, the president's power as commander-in-chief, the power of Congress to regulate commerce on issues like health care, who should be the president by one vote along party lines in Bush v. Gore, how elections are financed, what newspapers can print, and every other issue ingenious lawyers can construct," Specter told the subcommittee.
Specter said that "in a free society, the public is entitled to maximum transparency in its government institutions," and he was right. It's time to televise Supreme Court proceedings.
Follow Michael Smerconish on Twitter @Smerconish, or at www.smerconish.com.