Posts Tagged ‘Supreme Court’

Race In America

Saturday, July 11th, 2015

The week of June 22, 2015 was a historic one for Progress, with Confederate flags coming down in Southern capitals, Gay Marriage legalized throughout the country and Obamacare saved once again from the most recent conservative attempt to destroy it. The week was capped off by an incredible eulogy given by President Obama at the funerals of the 9 members of a historic black church in Charleston, SC.

Earlier in the week, Obama got Elizabeth Hassleback and the folks at Fox riled up with his use of the “N-word” in an interview with Marc Maron. Discussing race relations, Obama noted

Racism, we are not cured of. And it’s not just a matter of it not being polite to say ‘nigger’ in public. That’s not the measure of whether racism still exists or not. It’s not just a matter of overt discrimination. Societies don’t, overnight, completely erase everything that happened 200 to 300 years prior.

Obama’s statement brought me back to this fragment of a post that I wrote a few months ago regarding race in America in the wake of the Michael Brown shooting and it’s aftermath.

 

I’ve been debating this week with My Conservative Uncle and another conservative sparring partner about our favorite hot button topic: Race in America.

It started this time with the dual announcements that the Justice Department didn’t press civil rights charges against Darren Wilson in the shooting of an unarmed teenager Michael Brown and the report documenting a pattern of racial discrimination in Ferguson. Like many other people, I questioned the decision not to charge Wilson and I continue to believe that the Ferguson police department made a bad situation worse in the way they handled the situation. But the Justice Department went  much further than the grand jury and the preosecutor, not only not charging him, but exonerating him. As Ta Nehesi Coates notes

The investigation concluded that there was not enough evidence to prove a violation of federal law by Officer Wilson. The investigation concluded much more. The investigation concluded that physical evidence and witness statements corroborated Wilson’s claim that Michael Brown reached into the car and struck the officer. It concluded that claims that Wilson reached out and grabbed Brown first “were inconsistent with physical and forensic evidence.”  

The investigation concluded that there was no evidence to contradict Wilson’s claim that Brown reached for his gun. The investigation concluded that Wilson did not shoot Brown in the back. That he did not shoot Brown as he was running away. That Brown did stop and turn toward Wilson. That in those next moments “several witnesses stated that Brown appeared to pose a physical threat to Wilson.” That claims that Brown had his hands up “in an unambiguous sign of surrender” are not supported by the “physical and forensic evidence,” and are sometimes, “materially inconsistent with that witness’s own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time.”

My uncle seized on this finding, but buried the lead by not mentioning the 100 page Justice Department report documenting widespread racial discrimination in the Ferguson police department. My other conservative “sparring partner” is a former police officer who objected to the superficial finding (as did many in conservative media) that 86% of traffic stops are of black residents while only 67% of Ferguson residents are black.

But to cite this statistic alone is to distort the report. In fact, it doesn’t even complete the sentence, which should read more like: black people are pulled over and searched more often, despite the fact that the white people who are pulled over and searched are more likely to be found with contraband.

The Justice Department’s Ferguson report is a detailed statistical analysis backed up by a shocking parade of horribles documenting abuse of power by police. It’s a portrait of a city that decided to use its poorest citizens as an ATM to fund their city government and a police force that took that pressure to generate revenue to the extreme.

“Officers routinely conduct stops that have little relation to public safety and a questionable basis in law,” the report states. “Issuing three or four charges in one stop is not uncommon. Officers sometimes write six, eight, or, in at least one instance, fourteen citations for a single encounter.” Some officers compete to see who can issue the most citations in a single stop.

Just to put a cherry on top, they also document racist jokes that have been e-mailed at multiple levels of the Ferguson PD and court system.

Defenders of the Ferguson PD say that this is not racial bias, that it’s evidence of liberal big government run amok, but a National Review article arguing that racial bias is not shown in the report includes the following:

The tendency of police to be on the lookout for crime combines with the pressures to prove productivity and the knowledge that poorer residents are the most squeezable turnips. In such a situation, who can be surprised that racial tensions have been increasing for years?

Far more alarming in Ferguson than whether vestigial racism animates a policeman here and there is the perversion of the law, and of the positions of those sworn to protect it, to buck up the treasury on the backs of the most vulnerable, whoever they may be.

Okay, so now we’re admitting that there were police abuses, but we’re being told that it wasn’t racial animus that motivated the police, it was the pressure of city officials for revenue generation and the fact that poorer people are easier targets and black people are poorer…

This is pretty weak tea if it’s supposed to be a defense of the Ferguson Police Department, and it’s probably cold comfort for the black residents of Ferguson who were victims of this targeting. Don’t be silly, black people, you weren’t targeted because you’re black, you were targeted because you’re poor!

But I didn’t really intend to write a post about Ferguson. What I wanted to talk about is how the meaning of the word “racist” does little to illuminate actual racial bias in this country.  In addition to the Ferguson report, the other hot button racial news of the day was the viral video of the members of the SAE fraternity at the University of Oklahoma chanting about how “there will never be a nigger (at) SAE” and celebrating the  lynching of black people.  Two students seen in the video have been identified and have since issued apologies (or had people issue apologies for them).  In one statement, the parents of one student state “we know his heart, and he is not a racist.”

You know what?  I get what they’re saying. Let’s give the kid the benefit of the doubt and say that he would not participate in a lynching of a black man and he probably wouldn’t argue that blacks should be denied the rights that white Americans are given. Let’s go further and take his parents statement that he was “raised to be loving and inclusive, and we all remain surrounded by a diverse, close knit group of friends.” Let’s even assume that he has a black friend. Given what we’ve assumed and what we’ve seen, can he qualify as racist?  The only way you can justify a statement like the one his parents issued is to define racism as only one narrow thing: old fashioned KKK, Nazi Skinhead type racism. And I’ll give conservatives that one thing: that type of racism is extremely rare in America these days.

But what’s less rare are pervasive racial stereotypes that still exist in our society. As Coates has argued

Racism is not merely a simplistic hatred. It is, more often, broad sympathy toward some and broader skepticism toward others.

This is obviously a softer definition and maybe it is more like racial bias than racism. This is the kind of discrimination you see in the Donald Trump’s Birtherism, or Rudy Giuliani’s statement that President Obama “doesn’t love America… not in the way you and I do.” It’s the kind of bigotry that allows us to excuse an all white police force when they basically occupy a majority black town, ticketing residents for victimless crimes and making criminals out of a majority of residents. It’s the kind of racial prejudice that is expressed in jokes and chants on playgrounds all over this country (and all over the world) and in frats and social clubs behind closed doors. It’s America’s original sin and evidence that, even with a black president, we’re far from the post-racial society that conservatives would like us to believe we’re living in.

It’s refreshing to have a President who not only understands this, but who acknowledges it in public.

Obamacare Supreme Court Primer

Tuesday, March 27th, 2012

Here’s Ezra Klein and Sarah Kliff with everything you need to know about health care reform’s Supreme Court debut.

They provide some good links to analysis of the case. It looks as though most scholars seem to agree that, whether you like the individual mandate or not, there is a ton of Supreme Court precedent that supports the ability of Congress to enact a law like this. The Commerce Clause in the Constitution gives Congress the ability to regulate interstate commerce, and as Bloomberg View puts it

The question is what qualifies as interstate commerce. For most of the second half of the 20th century, the answer has been clear…pretty much anything.

Is a farmer growing wheat for his own consumption engaging in interstate commerce? Yes. A small restaurant in Alabama refusing to seat blacks? Yes. A sick Californian growing her own medicinal marijuana, as allowed by state law? Yes. And so on.

and if these cases are considered appropriate use of the Interstate Commerce Clause, then certainly a requirement that is central to controlling the cost of an industry that accounts for 18% of the economy qualifies as well.

And lest you are tempted to cite the Founding Fathers to denounce requiring purchase of a private good, you would be wise to remember that George Washington signed a bill in 1792 mandating that all free men purchase a gun (Big Government indeed).

Perhaps the most interesting take on the Supreme Court’s decision comes from Dahlia Lithwick, who predicts that the Justices will stay away from a narrow decision striking down the law and keep their powder dry for the upcoming battle to dismantle the Warren Court’s legacy:

They will hear six hours of argument next week. They will pretend it is a fair fight with equally compelling arguments on each side. They will even reach out and debate the merits of the Medicaid expansion, although not a single court saw fit to question it. And then the justices will vote 6-3 or 7-2 to uphold the mandate, with the chief justice joining the majority so he can write a careful opinion that cabins the authority of the Congress to do anything more than regulate the health-insurance market…. And then—having been hailed as the John Marshall of the 21st century—he will proceed to oversee two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.

Lithwick’s analysis sounds about right to me. Say what you will about John Roberts, but you have to admire his ability to smile politely and show the world a reasonable disposition while he works behind the scenes to radically alter the rules of the political system that Americans have come to understand them in the modern era. 

I say he and his team pass on this one so they have a freer hand when the eyes of the country aren’t focused on them.

Kagan and Sotomayor Play Supreme Court Good Cop-Bad Cop

Monday, December 27th, 2010

Kagan's investiture ceremony

Here’s an LA Times article on how the addition of Sonia Sotomayor and Elena Kagan have given a shot of energy to the left in oral arguments before the Court.

Too soon to tell yet, but this article provides evidence for the much speculated upon theory that the addition of Kagan was an attempt by Obama to pick someone who could serve as a consensus builder, crafting middle ground positions that could bring Justice Kennedy away from the conservatives to meet with the liberal justices on a middle ground.

There is some evidence of this and the LA Times article shows the good cop-bad cop roles that Sotomayor and Kagan sometimes take on, with Sotomayor’s aggressiveness as a questioner serving as a counterweight to Scalia, and Kagan playing the role of a consensus builder in the middle left, attempting to bring Kennedy along.

This approach won’t be successful all the time, nor will it provide liberal outcomes in most cases, but it may temper some of the extremes of the Robert’s Court (which is the best the liberals might hope for barring some unexpected change in the composition of the court).

Judge Walker Tees up Prop 8 Case for Justice Kennedy

Monday, August 9th, 2010

I have to say that I hadn’t paid attention to the Prop 8 case before last week’s decision. I assumed that the Supreme Court overturning Prop 8 and declaring a constitutional right to gay marriage had close to no chance under the Roberts court.  

After the coverage of Federal Judge Vaughn Walker’s decision declaring Prop 8 unconstitutional, I’m realizing along with a lot of other people that this possibility has a real chance of becoming a reality.

To me, the most interesting part of this case is the pure gamesmanship that has gone into it. To begin with, the case against Prop 8 is being argued by David Boies and Theodore Olson, the two men who argued against each other before the Supreme Court in the Bush v. Gore case. These men are two of the most prominent lawyers in America today. Boies is one of the most respected trial lawyers in America and Olson served as Solicitor General of the United States under George W. Bush and was considered for a Supreme Court nomination. The judge in the case is a George HW Bush appointee who has an reputation as an independent thinker with a libertarian bent. Judge Walker is also gay.

 As Dahlia Lithwick detailed in Slate.com this week, Walker lays the groundwork for a Supreme Court overturning of this law with an extremely well crafted opinion that seemed to be written with a keen political eye towards having Justice Kennedy cast the deciding vote to guarantee gay couples the right to marry.

While it’s impossible to say with any certainty how the individual Justices would rule on the case, the idea of Kennedy casting the swing vote assumes that all of the left of center Justices would vote in favor of a right to gay marriage and that the 4 staunchest conservatives would vote against it. Given the fact that Kennedy has increasingly sided with the conservative block of the court in recent years, I had assumed that he would do the same in this case. 

However, I had forgotten that Justice Kennedy has been an unlikely champion of gay rights on the Supreme Court. Kennedy wrote the opinion for a 6-3 majority in Romer v. Evans, a 1996 case that struck down Colorado’s Amendment 2, which would have banned all jurisdictions in Colorado from naming gays as a protected class. He also wrote for a 6-3 majority in Lawrence v. Texas, a 2003 case that held that Texas’ anti-sodomy laws were unconstitutional. 

As Lithwick notes, Walker included seven citations to Justice Kennedy’s  opinion in Romer v. Evans and eight citations to his Lawrence v. Texas opinion.

Also included among the highlights of  Judge Walker’s case are 80 “findings of fact” which appeals courts must supposedly defer to in making their decision. Among the most notable of Walker’s findings are the following:

states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child’s parent is not a factor in a child’s adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay.

Taken altogether, this is an extraordinarily well crafted opinion and lays a clear path for the court to declare a right to gay marriage.

Whether Kennedy would be open to cast the deciding vote in favor of the plaintiffs is, of course, an open question. Certainly, his decisions in Roemer and Lawrence both indicate that it is at least plausible that he would extend the rights granted in those two cases to cover the issue of marriage equality for gays and lesbians, but there is also an argument to be made that the right to engage in consensual sex and be free of discrimination are different than the right to demand that the state recognize a marriage between two people of the same gender.  

This case will be one to watch in the coming years. For now, the political maneuverings that are going on in preparation for what most assume will be an eventual hearing at the High Court have been fun to watch.

Enlarging the Strike Zone

Saturday, July 10th, 2010

The seeds of the Reagan/Bush years are finally coming to fruition.

Chief Justice John Roberts, in his confirmation, famously likened the job of the Supreme Court to that of a impartial umpire, calling balls and strikes. If the results of the Court’s last term are any indication, a better metaphor for what Roberts is doing is enlarging the strike zone while the monied interests are pitching against the American people.

As then Senator Barack Obama noted during Judge Alito’s conformation hearings, Alito, as a federal judge, had “consistently side(ed) on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.”

Now that Alito has joined Roberts, Scalia, Thomas and Kennedy on the court, it’s becoming clear what the real world consequences of that worldview are.

It’s also shown the hollowness of the Republican arguments against “judicial activism.” For years they used that term as a sword against liberal justices, but the Citizens United case is every much as judicial activist as any of the Warren Court’s decisions. The only difference is that the Roberts court’s judicial activism is creating new rights for corporations while it whittles away at the rights of individuals on the margins.

Unfortunately, the nomination of Elena Kagan is unlikely to change that dynamic. Aside from not altering the liberal-conservative math, Kagan’s nomination seems to be part of an existing pattern of Republican presidents generally picking young, strong conservatives on the Supreme Court while Democratic presidents pick candidates from the center left.

Souter On an Evolving Constitution

Saturday, June 5th, 2010

Wonky little NYT piece from Linda Greenhouse on Souter’s Harvard Commencement Speech.