Thurgood Marshall and how minorities should respond

Ruth Bader Ginsberg was not the only justice to say things that caused Beltway heads to blush. From 1987:

Asked by Mr. Rowan to rate some of the Presidents and their impact on racial justice in his lifetime, Justice Marshall said:

”I don’t think Roosevelt did much for the Negro. But I think Truman is going to come out on top. Eisenhower I don’t think did anything, except to try to undermine the school decision – which he did. Kennedy was held back by the Attorney General, his brother. His brother said don’t do anything for the Negroes because you won’t get re-elected – wait until you’re re-elected and then do it. And then he got killed.

”But Johnson, his plans were unbelievable, the things he was going to do. But he was too far out for Negroes and civil rights. He wasn’t thrown out because of Vietnam; they just used that as an excuse to get rid of him.”

In response to a question from Mr. Rowan, he said he considered Johnson the greatest President in terms of civil rights.

Of President Carter, he said: ”I think his heart was in the right place. But that’s the best I can do with him.” Exchange About Reagan There followed this exchange:

Mr. Rowan: ”What about Ronald Reagan?” Justice Marshall: ”The bottom.” Mr. Rowan: ”The bottom?”

Justice Marshall: ”Honestly. I think he’s down with Hoover and that group. Wilson. When we really didn’t have a chance.”

Yet we’re supposed to cry about what Ginsberg said.

Ruth Bader Ginsberg and the myth of objectivity

To revere objectivity is to be American. The myth of objectivity is born from the reality of empire. Only a country whose formidable and terrible abundance changed the outcomes of two world wars, removed heads of state from Iran and Guatemala to Congo and Iraq could value the solidity of facts, any set of facts however blinkered. Objectivity is the hegemon’s bloodless sword, swung when the victim or the suspect — how hard to distinguish them — can speak his peace. In France and England, who once ruled most of the globe between them, the notion of an objective press is a curiosity, tolerated from their American cousins; they wanted their subjects to know that judgment was inexorable, unmoored from justice. Only in America do we confuse objectivity with fairness.

Today the Beltway class has collapsed in a faint over remarks made by Ruth Bader Ginsberg, appointed by Bill Clinton in 1993 and by any definition the most consistent liberal Supreme Court justice of her generation (Sonia Sotomayor, according to scholars, recently overtook her, but her tenure is shorter). Donald Trump, she said, “is a faker.” To the AP she said other things calculated to piss off Trump. Apparently the octogenarian is a truculent mood, and reporters pumped her for more juice. Because Americans and especially the American political reporting class worship objectivity and confuse it with fairness, it has recast the Supreme Court building as Olympus, from which its nine gods deliver opinions as cold and hard as its marble facade. A presidential candidate may imply that John McCain is a coward and openly insult the looks of women and call Mexicans rapists and murderers, but the Supreme Court is supposed to be Beyond This.

Another myth. From the earliest days of the Republic through the present day, the Supreme Court has boasted dimwits, hacks, and cronies. Why? Presidents appoint them: in gratitude for service rendered in campaigns, the fulfilling of debts, or the exiling of rival claimants to the Oval Office. William Howard Taft and Dwight Eisenhower did try to reach beyond party; they and a few others are exceptions. Ginsberg’s remarks were intended to wound. She is no fool. She didn’t give a damn about objectivity. We live in a system that offered Roscoe Conkling a seat on that court. Two of Abraham Lincoln’s appointees, Stephen Field and Chief Justice Salmon Chase, growled on the sidelines waiting for their parties to extend them the presidential nomination — growled for years. Richard Nixon nominated a man whose purpose was to serve as a middle finger to the Senate; his jurisprudence was at best colorless and at worst white supremacist garbage.

At any rate, here are examples from our history of objectivity.

1896:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

1927:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes….Three generations of imbeciles are enough.

And that masterpiece of objectivity, released in 1857. It stopped a civil war:

[The Negroes] had for more than a century before been regarded as beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect; and that the Negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race.

A woman with biases and an appetite for sympathetic audiences, Ginsberg has spoken at liberal gatherings. Samuel Alito has addressed the Federalist Society. Clarence Thomas married a woman who dressed like this. Louis Brandeis counseled FDR and Wilson. Potter Stewart played tennis with George H.W. Bush. Harlan Fiske Stone tossed a medicine ball around with Herbert Hoover in what I can imagine was the gayest of gay times. Appointed by politicians and given lifetime sinecures, endowed with oracular powers beyond their educations and often their temperaments, Supreme Court justices are politicians too.

Finally, only men and women who think Bush v. Gore should have been heard by the Rehnquist Court think Ginsberg despoiled the sanctity of her robes.

Clarence Thomas and Jeffrey Toobin

Jeffrey Toobin has made a cottage industry of comprehending the mind of Clarence Thomas, and insofar as he explains how the justice’s jurisprudence differs from the late Antonin Scalia he’s fine:

Far more than even Scalia did, Thomas endorses originalism—the belief that the Constitution should be interpreted as its words were understood at the time it was written. By a vote of 5–3, the Court struck down Texas’s restrictions on abortion clinics in Whole Woman’s Health v. Hellerstedt, but neither of the other dissenters (Roberts and Samuel Alito) joined Thomas’s opinion. What’s most extraordinary about Thomas’s dissenting opinion in the abortion case is not that he objects to the ruling; as he noted, “I remain fundamentally opposed to the Court’s abortion jurisprudence.” But Thomas also took the opportunity to reject more than a century of the Court’s constitutional jurisprudence. He said that, since the Presidency of Franklin D. Roosevelt, the Court’s interpretation of the Constitution has become an “unworkable morass of special exceptions and arbitrary applications.”

The abortion dissent explains why Thomas is so cut off on the Court, even from his fellow-conservatives. He doesn’t respect the Court’s precedents. He is so convinced of the wisdom of his approach to the law that he rejects practically the whole canon of constitutional law. It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created.

Toobin’s basic point has a couple of holes. If Thomas thinks the precedents are wrong, he should strike them down. A black man in America who came of age in the sixties and early seventies and attended Yale Law School has every reason to despise precedent when they were the Slaugherhouse and Civil Rights cases and Plessy v. Ferguson. Precedent kept Jim Crow and discrimination in commerce intact for decades. It confined black children to fourth-rate schools. His opposition to extending Bill of Rights protections to the states — one of the many constitutional revolutions enacted by FDR’s appointees — would amount to a reversion of the United States to exactly that: a confederation of states assembled by a federal government whose purpose is to wage war when necessary and funded by tax dollars that can fill a cleaning bucket; a society where it’s every man for himself but thanks to the expunging of affirmative action and anti-discrimination laws would mean men of talent would rise on the strength of their own merits, which is what might’ve happened to Thomas in Yale and presumably the Reagan administration if the federal government didn’t have systems in place. I can imagine Thomas nodding when reading Joseph Bradley’s majority opinion in the Civil Rights Cases:

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected.

By his reckoning these systems reward mediocre men for political purposes. Gnawing at Thomas is the suspicion that he was one of those mediocre men.

And that’s where I’ll stop my speculations. It’s not my place to explain why I might think a black American who came of age in the sixties and early seventies drew the wrong conclusions.

American justice: ‘perpetually bent towards prosecution’

After last week’s dissent in the Strieff case, Justice Sonia Sotomayor looked like she was dusting the Wise Latina modifier-noun construction that Senate Republicans and their allies turned into an opprobrium during her 2009 confirmation hearings. Columnists have focused on the peroration, in which she explains the humiliations faced by people of color for something as dangerous as crossing the street. I want to focus on this passage in Section Three:

The Court sees things differently. To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. Ante, at 7. This is a re­ markable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.

No weasel words here – this is clear, clean prose. With dissents like this and her designation as the Court’s most liberal member, she’s looking to reclaim the cause of righteousness fought by the late Thurgood Marshall, according to Nancy LeTourneau, especially in Fourth Amendment cases:

One of the problems with our current criminal justice system is the way it is perpetually bent towards prosecution – especially when it comes to upholding the rights of poor people. That is evident when we look at everything from the amount of money we invest in prosecutors (as opposed to public defenders) to the way our court system is stacked with those who have prosecutorial experience. The latter is also true of Sotomayor’s background. But perhaps this is what she meant when she said she “would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

I can’t think of ways to explain to skeptics on the right, but often, regrettably, on the left, how identity colors in subtle tints; to hear these skeptics tell it, the only truly objective judge and critic, color blind and impartial, is a white man, or, better, a sourness towards individual rights and a penchant for giving institutions the benefit of the doubt. Clarence Thomas benefitted from affirmative action and promotions from Republican presidents, which enraged him; he didn’t feel qualified enough. But conservatives don’t mention how this posture influenced his decision making.

That pesky due process clause!

Joe Manchin has the demeanor of the manager of a chain gymnasium in a strip mall. I distrust him not only because he’s one of the Beltway’s prized examples of bipartisanship but for being governor when the coaling industry continued its mission of turning West Virginia into an abattoir. If you fuck both your Democratic and Republican constituents, then it’s bipartisan.

I suppose it’s commendable that after Newtown he led the Senate in proposing restrictions on assault weapons, but because he’s such a “centrist” his concept about due process might not stretch far enough to make four Sunday morning talk shows at the same time. SCOTUS has said owning a gun is a protected right under the Second Amendment. It would need an act of Congress amending the amendment or for the Supremes to overrule itself. Elect Democrats to Congress and the White House if you want to make headway. Otherwise, restricting rights with no due process and we open the door for restrictions on other rights.

But this latest alliance between ACLU types and conservatives bothers the hell out of me. Charles Pierce, an expert on drawing up indictments, writes:

Ever since 2001, with several notable and politically impotent exceptions, this same faction of our politics has supported surveillance without due process, rendition without due process, black sites without due process, torture without due process, and the substantial gutting of due process in domestic areas such as the tort system and voting rights, to say nothing of its defense of racial and ethnic profiling, and of police officers for whom due process turns out to have been pepper spray and/or a bullet.

But suggest that someone whom the FBI suspects enough of being a terrorist to keep him off an airplane should be barred from purchasing a deadly weapon and, suddenly, everybody’s a card-carrying member of the ACLU. It’s truly a delightful thing to see.

And then there’s the senior senator from West Virgina, for whom due process is an annoyance. Still, a chap’s got to deal with the blasting thing.

Redistricting? What redistricting?

Even John Roberts must have soul, or at least must occasionally hint that he’s got one. The plaintiffs’ claims in Harris v. Arizona Independent Redistricting Commission proved too much for the Supreme Court, which unanimously ruled that Arizona’s redistricting commission can draw its districts to reflect voting patterns. Guess what they’ll reflect? Guess whom the plaintiffs wanted to benefit?

A fascinating crew circled its wagons around this case. The founder of the Phoenix Tea Party lent his name to the suit. And there’s more:

In 2012, Harris launched a recall petition against Senator John McCain (R-Ariz.), largely because he was upset that McCain had come to the defense of Huma Abedin, one of Hillary Clinton’s closest aides, who conservative conspiracy theorists have alleged is a member of the Muslim Brotherhood. At the time, Harris told the Arizona Capital Times that Muslims should not be able to serve in government. “Have you ever read the Quran?” he said. “I suggest you do so, because anyone that is a Muslim is a threat to this country, and that’s a fact. There is no such thing as a moderate Muslim. If they are Muslim they have to follow the Quran. That’s their religion and that’s their doctrine.”

Several of his co-plaintiffs are members of a conservative group that backed the state’s widely condemned 2010 law authorizing police officers to stop people at will and demand proof of citizenship.

Who else? Hugh Hewitt, for years a fringe plasticine demento in the back alley called Townhall and now beloved of Chuck Todd, joined as a co-plaintiff. I suppose this naked partisanship galled even Alito and Thomas.

‘You believe the guy who is a guy like you’

On the occasion of the release of the HBO film Confirmation about the fall 1991 Clarence Thomas hearings, Professor Anita Hill speaks.

Q: You’ve said of the hearings, “I had a gender and he had a race,” which I took to mean that the senators essentially ignored your race by giving credence to Thomas’ comment that the hearings were a “high-tech lynching.” Is that right?

Here I was, an African-American woman essentially being accused by Clarence Thomas of provoking his lynching. Historically, that is just a fallacy. There was never in the case of lynching — there is just no evidence that African-American women had ever had the power to call for someone to be lynched. Secondly, it ignores the history of sexual abuse of African-American women, and so if you look at the film what you’ll see is that they were willing — even the public, 70 percent of the public when they were polled after the hearings believed Clarence Thomas. Even the public, they were willing to dismiss my experience as insignificant, both racially and in terms of gender.

What the committee did to reinforce that was to take the three other African-American women, who wanted to testify about similar experiences with Clarence Thomas, and to dismiss those women, too — not even call them forward to testify…

You had three African-American women there; nevertheless, they were dismissive of us and our experiences and chose to go with what his experience was. People say, “Well that was really more about his race,” but in the eyes of the Senate, it was about his gender. It was about male privilege. Who do you believe? You believe the guy who is a guy like you…

How the hearings would have gone in 2016 had the Senate Judiciary Committee, chaired by Joseph Biden with hair, taken Hill’s seriously remains one of the great what-ifs. In 2016 the committee would have had to take her more seriously.

SCOTUS: Imposing a health improvement on ‘thousands of women’

Thanks to the benevolence of the Texas legislature, women in this state who want or need an abortion must travel to what are called “ambulatory surgical centers” which must have admitting privileges in local hospitals — privileges that are expensive and that these hospitals can refuse. More than five million women in Texas have access to ten abortion clinics. I would say that this law constitutes an undue burden on these women according to the Casey model to which the Supreme Court gave its imprimatur almost twenty-four years ago. “Undue burden” is one of those glittering phrases that the Court summons to existence when it wants to chip away at legislation without rescinding it, like the “rule of reason” governing the regulation of trusts in the 1910s.

Slate’s Dahlia Lithwick has fun depicting how the Supreme Court’s three female justices shredded Texas clinic advocate Stephanie Toti’s arguments into guitar picks during oral argument for Whole Woman’s Health v Hellerstedt.

Ginsburg begins by asking Keller how many Texas women live more than 100 miles from an abortion clinic. When he tells her that women in El Paso can hop over the border to New Mexico, she stops him short. “That’s odd,” she muses, “that you point to the New Mexico facility. New Mexico doesn’t have any surgical ASC requirement, and it doesn’t have any admitting requirement. So if your argument is right, then New Mexico is not an available way out for Texas because Texas says to protect our women, we need these things.” (This is where I want to call up each of the men who demanded that Ginsburg retire in 2014 and just smile, and smile, and smile.)

Sotomyor tags in: “According to you, the slightest health improvement is enough to impose on hundreds of thousands of women.­­ Even assuming I accept your argument, which I don’t, necessarily, because it’s being challenged, but the slightest benefit is enough to burden the lives of a million women. That’s your point?”

Ginsburg: “I can’t imagine. What is the benefit of having a woman take those pills in an ambulatory surgical center when there is no surgery involved?”

The way it looks to a man illiterate in jurisprudential arcana is this way: it’s easier — a relief — for Texas women to visit New Mexican clinics, which don’t yet boast these “protections,” for an abortion despite the Texas legislature’s stated interest in preserving the health of these women; and a woman’s taking two pills to terminate a pregnancy in front of a doctor is more dangerous than a colonoscopy. Yes and yes! the late Antonin Scalia would have shouted back.

Scalia: St. Hubertus loyalist

We now know what the late Antonin Scalia was up to the weekend he was found dead. The associate justice was hunting as a member of, I’m not lying, the International Order of St. Hubertus:

“Honoring God by honoring His creatures,” according to the group’s website. Some hold titles, such as grand master, prior and knight grand officer. The order’s name is in honor of Hubert, the patron saint of hunters and fishermen.

Honoring God by killing his creatures, I think is the English translation of the Latin phrase.

Poindexter told CultureMap Houston that some of the guests dressed in “traditional European shooting attire for the boxed bird shoot competition” and for the shooting of pheasants and chukar, a type of partridge.

For the hunting weekend earlier this month, Poindexter told the Washington Post that Scalia traveled to Houston with his friend and U.S. marshals, who provide security for Supreme Court justices. The Post obtained a Presidio County sheriff’s report that named Allen Foster as Scalia’s close friend on the trip.

Sheriff Danny Dominguez confirmed that a photograph of Washington lawyer C. Allen Foster shows the same man he interviewed at the ranch the day of Scalia’s death.

From Houston, Scalia and Foster chartered a plane without the marshals to the Cibolo Creek Ranch airstrip. In a statement after Scalia died, the U.S. Marshals Service said that Scalia had declined a security detail while at the ranch.

The friend, Louisiana-born Foster, is an attorney with the Washington firm Whiteford, Taylor & Preston. He is also known for his passion for hunting and is a former spokesman for the hunting group Safari Club.

In 2006, Foster was featured in the Post when he celebrated his 65th birthday with a six-day celebration in the Czech Republic. He flew his family and 40 Washington friends there to stay in Moravia’s Castle Zidlochovice, a baroque castle and hunting park. The birthday bash included “tours of the Czech countryside, wine tasting, wild boar and mouflon (wild sheep) hunts, classic dance instruction and a masked costume ball.”

One of my favorite stories is Gustave Flaubert’s lurid “The Legend of Saint Julian the Hospitalier,” the closest verbal approximation to a stained glass window, in which the hero slaughters a whole continent of walking and crawling beasts until a dying stag puts a curse on him. All Nino was missing was the late William Rehnquist’s robe.

Filling the seat

Well, isn’t this fascinating?

New Public Policy Polling surveys of Pennsylvania and Ohio find that both Pat Toomey and Rob Portman are suffering from very weak approval numbers as they seek reelection to the Senate. Furthermore voters in their states, by wide margins, want the vacancy on the Supreme Court to be filled this year. Their opposition to even considering a replacement for Antonin Scalia has the strong potential to put them in even worse standing with voters than they are already.

Key findings from the survey include:

-Only 29% of voters approve of the job Toomey is doing to 40% who disapprove, and just 30% approve of the job Portman is doing to 39% who disapprove. They’re both very much in the danger zone for reelection based on those low approval numbers. One thing complicating their path to reelection is how bad the overall brand of Senate Republicans is. Mitch McConnell has a 13/56 approval rating in Pennsylvania, and a 14/57 one in Ohio. His extreme unpopularity is going to be a weight on his party’s incumbents running across the country.

-Strong majorities of voters- 58/35 in Ohio and 57/40 in Pennsylvania- think that the vacant seat on the Supreme Court should be filled this year. What’s particularly noteworthy about those numbers- and concerning for Portman and Toomey- is how emphatic the support for approving a replacement is among independent voters. In Ohio they think a new Justice should be named this year 70/24 and in Pennsylvania it’s 60/37. Those independent voters are going to make the difference in these tight Senate races, and they have no tolerance for obstructionism on the vacancy.

This SCOTUS fight is the Dems to lose. They gotta demagogue like mad. Never mind what Joe Biden is supposed to have said in 1992. Most citizens understand the basic logic: the president nominates, the Senate advise. The Senate doesn’t have to consent; it can vote to reject the president’s nominee. Omitted from the jeremiads decrying the way poor Judge Bork was treated is that Bork did get a vote from the full Senate.

The bright, lonely light of Antonin Scalia

That devoted institutionalist Jeffrey Toobin writes a worthwhile epitaph for Associate Justice Antonin Scalia, put to rest this weekend to meet the god whom he hopes will reward his diligence:

Scalia described himself as an advocate of judicial restraint, who believed that the courts should defer to the democratically elected branches of government. In reality, he lunged at opportunities to overrule the work of Presidents and of legislators, especially Democrats. Scalia helped gut the Voting Rights Act, overturn McCain-Feingold and other campaign-finance rules, and, in his last official act, block President Obama’s climate-change regulations. Scalia’s reputation, like the Supreme Court’s, is also stained by his role in the majority in Bush v. Gore. His oft-repeated advice to critics of the decision was “Get over it.”

Not long ago, Scalia told an interviewer that he had cancelled his subscription to the Washington Post and received his news from the Wall Street Journal, the Washington Times (owned by the Reverend Sun Myung Moon’s Unification Church), and conservative talk radio. In this, as in his jurisprudence, he showed that he lived within the sealed bubble of contemporary conservative thought. That bubble also helps explain the Republican response to the new vacancy on the Court. Within hours of Scalia’s death, Mitch McConnell, the Senate Majority Leader, announced that the Senate will refuse even to allow a vote on Obama’s nominee, regardless of who he or she turns out to be. Though other Republican senators have indicated that they might be a little more flexible, at least on hearing out a nominee, the chances of a confirmation before the end of Obama’s term appear to be close to nil.

Next time a sympathizer praises Scalia’s intellect, direct them to this interview. To read The Washington Times is to lower oneself into a tub of acid and call it a refreshing, delicious bath. To listen to Scalia read his dissent in Lawrence v. Texas is to submit to a harangue from a road rage suspect before he aims his Explorer at you.

The choler of Antonin Scalia

Whenever I read liberal clerks praising the late Antonin Scalia’s wit and warmth, I mourn the pervasiveness of biography as a prism through which to examine the meanest of lives. To counter the mythmaking, Peter Shane recalls Scalia unleashing thuggish sarcasm on a law student asking a question (if you want to lecture, save the humiliation of students for office or coffee time, not in front of their peers). Praising Scalia’s permanent contributions to American jurisprudence doesn’t prevent Shane from waving the smoke from his eyes:

At the same time, Justice Scalia routinely deployed his methods largely in service of bad causes. In cases on race and sex discrimination, the rights of gays and lesbians, the Eighth Amendment, voting rights, consumer rights, environmental law — pretty much every cause progressives have embraced since the New Deal — he voted the positions of a committed revanchist determined to turn back the political and jurisprudential clock.

Almost as bad, in both dissents and separate concurrences, Justice Scalia was famously prone to lace his analyses with scorn and ridicule for those with whom he disagreed. These were and are texts destined to be read by generations of lawyers and law students, as well as by the general public. They are regrettable not only in their lack of professionalism but because they no doubt help to legitimate a corrosive form of intellectual discourse which confuses contempt with reason, and which has become all too common.

I remember again how he mocked Sandra Day O’Connor in his Webster opinion, how he was unembarrassed about using the “broccoli” example during the first Affordable Care Act, the “Get over it!” spit in Leslie Stahl’s face during a “60 Minutes” interview.

Finally, the question of opinion authorship has mystified for years. Until the clerk system became institutionalized in the 1930s, justices wrote their own opinions. In the modern era Hugo Black and William O. Douglas still did. John Paul Stevens said he wrote first drafts himself. I think John Roberts does too. But reading the recollections to which I linked above it looks like Antonin Scalia, the pungent stylist, commissioned drafts from clerks on which he’d perform editing, heavy or light. What distinguishes the Court of the last fifty years from its earliest iterations is the degree to which ambitious law school graduates fight the constitutional battles. To lead a coterie of ghostwriters dispatching your malice is no small feat.