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Social engineering, Roberts Court-style

Now that a week has passed since the Court handed down Ricci v. DeStefano (2009), better known to the public as the "white firefighters" case, and the lawyers have had their back-and-forth over what this decision means for the law of Title VII, "disparate treatment" vs. "disparate impact," the professed standards of the Roberts Court on "judicial minimalism" vs. the Roberts Court's avowed preference for moving the law in any direction it sees fit and, naturally, whether this renders Sonia Sotomayor "unfit" to serve on the Court, this seems as good a time as any to offer some thoughts on what the Court's decision means beyond the narrow world of legal academia and those in the mainstream media who genuinely believe there is something called "the law" that stands apart from the political world that creates it.

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Sonia Sotomayor: If the conservative majority's 5-4 decision to reverse the unanimous opinion of the 2nd Circuit Court of Appeals decision affirming the federal district court's decision in favor of New Haven makes Sotomayor "unfit" to take Justice David Souter's seat on the Court, then more than one justice on the current Court better call College Hunks Hauling Junk and clear out their offices, starting with Chief Justice John Roberts.

In 2005, Roberts wrote the opinion for a three-judge panel for the D.C. Circuit Court of Appeals that upheld, in Hamdan v. Rumsfeld, the Bush administration's decision to establish military commissions without congressional approval based on the theory that Article II pretty much gave the president the power to do what he wished in "times of crisis" and, secondarily, that the Geneva Convention was judicially unenforceable in the American judicial system. A few days later, President Bush nominated Roberts to the Court, and he was confirmed with little controversy, something, in retrospect, that should have been remarkable given that his view of executive power in Hamdan was without precedent. In 2006, the Court, with Roberts abstaining, reversed the new Chief Justice's opinion. Five members of the Court -- Stevens, Souter, Ginsburg, Breyer and Kennedy -- rejected in toto the Bush administration's theory of unbridled executive power, and, by default, the legal justification for the military commissions that Roberts, in his opinion for the D.C. Circuit, endorsed without reservation. Hamdan is perhaps the most important decision on the "inherent" power of the executive to take extra-constitutional action since the Pentagon Papers decision of 1971, and Roberts got it completely wrong.

Sam Alito should get packing, too. In 1991, Justice Alito wrote the opinon for a three-judge panel of the Third Circuit Court of Appeals upholding Pennsylvania's restrictive abortion law. Alito's decision to uphold the provisions requiring parental notification, a 24-48 hour "waiting period," and "informed consent" were upheld by the three justices -- O'Connor, Kennedy and Souter -- who helped formed the five member majority upholding the "core" of Roe -- and the Court's four dissenters -- Rehnquist, Scalia, Thomas and Byron White. But the section of Alito's opinion upholding the state's "spousal consent" requirement was rejected by a majority of the justices. Indeed, Alito's opinion upholding a husband's "right" to approve his wife's decision to have an abortion met with not-so-carefully disguised hostility from O'Connor, who, according to Jeffrey Toobin's book, The Nine: Inside the Secret World of the Supreme Court (2007), was less than thrilled that Alito was nominated to replace her. I can only imagine why.

Perhaps Justice Stevens should go ahead and book a one-way trip on his own plane back to Florida to take the retirement that "veteran Court watchers" (Does that job description actually go on someone's 1040?) have been predicting for the last five or six years. This term, the Court, with Justice Scalia writing for a 5-4 majority, overruled a 1986 opinion on the right to counsel, Michigan v. Jackson (1986), that was written by Justice Stevens. Yes, the decision had been eroded over the years; but there was nothing to suggest that Jackson needed to go. But the Court's minimalist, restraint-oriented, non-ideological wing decided that, hey, why the hell not, as long as they've got the votes.

Compare Roberts and Alito's constitutional errors in their appeals court opinions with Sotomayor's alleged misjudgment. Roberts was writing on a blank slate, and got it so wrong that even Anthony Kennedy decided to vote with the liberals in Hamdan. Alito's opinion upholding the "spousal consent" provision of Pennsylvania's restrictive abortion was so offensive to O'Connor (and Kennedy and Souter) that it led her, for just the second time since coming to the Court, to strike down an abortion restriction as an "undue burden."

And Sotomayor? The unanimous three-judge panel for the 2nd Circuit issued a one paragraph per curiam opinion affirming the district court's "thoughtful" analysis of New Haven's decision to throw out the promotions exam. An en banc 2nd Circuit, 7-6, affirmed the three-judge panel's ruling. That means that 11 of the 21 federal judges who voted in Ricci agreed with New Haven and, by extension, the prevailing interpretation of Title VII in "disparate impact" cases.

Another quick tidbit I haven't seen anyone point out about Ricci: the vast majority of amicus support went to New Haven, including six states, the United States and numerous well established and reputable civil rights organizations. Contrast that with the support going to the petitioners: a handful of right-wing groups, including the Eagle Forum, the American Civil Rights Union and a few others that were obviously created for no other reason than to file a brief in this case. On top of that, not one municipal or state government submitted a brief in support of the petitioners.

Not even Sarah Palin's beloved Alaska, which supported New Haven.

Enough? So who is really out of the mainstream? Hint: It's not Sonia Sotomayor.

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Title VII bars workplace discrimination. The law doesn't say that only employers who deliberately discriminate against their employees (or job applicants) are on the hook; it says, and the courts and Congress have been clear on this, that employers may not discriminate on the basis of race (or sex, color, national origin and, in subsequent provisions, many other categories as well). New Haven, like many other cities with majority African-American and/or Latino populations, employed firefighters in non-supervisory capacities; but, as you go up the chain of command, minorities become almost invisible. And, yes, exams are part of the selection and promotion process. But let's consider this: if minorities fail these exams at higher rates than their white counterparts, enough so that few, if any, are promoted, then we are left with two choices to explain this outcome:

1. African-American and Latino firefighters are capable of putting out fires, risking their lives in burning buildings and attending to all the difficult problems that firefighters face in their professional capacity. But African-Americans and Latinos stop short of having the intelligence and skill to command firefighters.

2. The examination process is producing results that are not accurately capturing the intelligence and skills of African-American and Latino firefighters in a way that makes them suitable to command their white colleagues.

Those are your two choices. Either African-Americans and Latinos aren't smart enough to get promoted or there is something wrong with the tests. Nothing else explains an outcome in which minorities come up so short.

The conservative majority on the Roberts Court -- and this includes Anthony Kennedy, who has never voted to uphold an affirmative action program created and administered by a private or public employer or public educational institution (he voted against the University of Michigan's law school admissions program that Justice O'Connor upheld in her opinion in Grutter v. Bollinger (2003) -- likes to trumpet its true commitment to civil rights by insisting there is something called "colorblindness" in the law. By drawing no moral distinction between affirmative action and Jim Crow-type discrimination, the position that Roberts articulated in the Parents Involved case two years ago, the Court's conservatives claim that there is no place for "counting by race" in equal protection analysis. Not to sound like Maureen Dowd, but, for a Court that doesn't like to count by race, it sure likes to count by race -- as long as the racial group coming up short falls meets the criteria of whiteness.

Conservatives, leaving people like Charles Murray and Rush Limbaugh aside, have learned enough from the civil rights movement not to suggest that African-Americans and Latinos lag behind whites on standardized tests of all sorts -- from firefighter examinations to the SAT -- because they're less smart; rather, conservative usually respond by saying that affirmative action is just a quick fix, and a bad one, that doesn't address the "underlying" problems with substandard African-American and Latino achievement -- fewer educational opportunities, disproportionate poverty and . . . here comes their favorite one . . . a "culture" that looks down upon persons who aspire to something more than a life of crime. Fix those problems, say conservatives, and the test scores will come. But conservatives still live in denial on the fundamental force that accounts for so many of these social and educational pathologies -- the discrimination, sometimes subtle and sometimes not, that is still very much a part of American culture. Simply because the law makes it illegal to discriminate in an open manner doesn't mean that minorities, on average, compete on an equal footing with whites. Living, as I do, in an area where white privilege is the norm and not the exception, I am still amazed at how unwilling and/or unable so many affluent, well-educated whites are to admit that our children start with advantages that most African-American and Latino children do not. If I had a nickel for every time I have heard a well-heeled white parent congratulate his or herself on the great job "we" did getting their child into a selective college or securing a spot on the U16 National Bound Hockey Team or sending their child to the Poconos or Berkshires to work for free at a $4000 a month sleep-a-way camp, I could retire and live off the interest alone. In a sense, white privilege operates like compound interest on a savings account -- the earlier you start saving, the more you earn over a longer period of time. And when you start with an advantage that no African-American or Latino can -- race -- at an early age, from whether one parent should "opt out" of the labor force to avoid having to hire, ironically enough, a Latino or African-American to care for their children, clean their house and do their laundry, that position only strengthens over time.

Here's a question for the Court's conservative majority, the majority so concerned about equal opportunity without regard to race: Of the 112 13 and 14 year-olds who played in our Bantam House program in the Montgomery Youth Hockey Association during the 208-09 season, one was African-American. The only kids who spoke English as a second language were the handful from other countries, Canada (Montreal), France and Germany. Of the 90 or so kids who played in our Bethesda-Chevy Chase recreational baseball league this year, not one was African-American. The hockey club is open to anyone who wants to play; residency and neighborhood are irrelevant. If you want to drive here from Northern Virginia, Frederick or Prince George's County to play hockey, and many do, you can. Our baseball teams, on the other hand, are entrepreneurial in their creation. You round up kids from your neighborhood, your kid's school and, if you still need players, you get your kid's friend from another neighborhood to come on board.

So now the question: what accounts for the lack of local African-American and Latino players in these two sports?

Neither organization discriminates on the basis of race. Both organizations offer "sliding scale" fees to families who need help paying fees or acquiring equipment. Both organizations advertise extensively to the local community, although in recent years that advertising has more become Web-centric. The areas from which the vast majority of our players come are Northwest D.C. and Montgomery County. Neither area lacks for eligible 13 and 14 year-old boys who are interested in baseball and hockey. According, then, to the Court, since the traditional bludgeons of discrimination are absent, race cannot possibly account for the near whites-only population playing in these programs.

But we don't even have to go deep below the surface to understand why this is. To play house hockey in MYHA -- that's not travel, which is about a $1000 more per year -- you start by writing a $1400 check. And that's before equipment and incidental fees. Then you deal with the odd times -- 6.45 a.m. weekend game times and/or 6.00 - 8.45 p.m. practice times during the middle of the week. For families down the income ladder who do not hold jobs that allow them the degrees of freedom to leave their offices to get their kids to and from practice and games, or families with only one parent in the house and no spouse near-by to help with the driving, it is impossible to play hockey. As for baseball, there is very little racial integration in the Montgomery County public schools, and what little integration there is stems from white kids attending magnet programs at schools that serve predominantly African-American and Latino communities.

Forty-five years after the passage of the Civil Rights of 1964, there is still this unpleasant truth about the socio-economic mobility of Americans -- race correlates with income, education,two-parent homes, access to health care and social status. The further down you go on all these characteristics, the more likely you are to be African-American or Latino. New Haven, like every other city with a majority non-white population in the country prior to the passage of the Voting Rights Act of 1965, was run by whites -- white mayors, white district attorneys, white police and fire chiefs, white utilities directors and on and on. Police and firefighting forces were reserved almost exclusively for whites and depended very heavily on patronage, ancestry and family ties for entry into those professions. Only in the last twenty or thirty years, as Justice Ginsburg pointed out in her dissent, have majority non-white cities made meaningful progress in integrating and diversifying their police and firefighting forces. But now, thanks to the Supreme Court, New Haven, a city that is approximately 60% African-American, will have few blacks or Latinos in command positions. Something, then, is accounting for all this . . . and it's not a sign hanging in an employer's door telling African-Americans or Latinos not to apply.

Few can or should dispute that the United States has made meaningful progress in addressing the consequences of its Original Sin. But the answers to the deep problems resulting from the vestiges of slavery, state-enforced segregation that permeated every aspect of American life and a culture reluctant to acknowledge the power that white privilege still wields in our contemporary society have never come, nor will they, by treating racial discrimination as a math problem. A horrible, shameful stain on American society cannot be cleansed by treating the moral consequences of the deliberate choices made by our largest and most powerful institutions, public and private, as amoral.

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President Obama was criticized early on for taking Sonia Sotomayor's background into account when he decided to nominate her to replace David Souter. Conservatives complained about the "empathy" that Obama believed was important for judges to have when deciding cases that deal with real people who have real problems. Conservatives who normally have no warmth for Justice Kennedy have praised his Ricci opinion as an exercise rooted in the law rather than "empathy" for the minority firefighters who still have no access to the command positions in the New Haven fire department. But Kennedy's opinion is hardly dispassionate analysis. Throughout his opinion, Kennedy makes multiple references to the hardworking firefighters who were denied their "merit-based" promotion because the test failed to yield enough minority applicants into command positions. We learned that Frank Ricci has dyslexia and worked hard to overcome it, and even paid out over a $1000 from his own pocket to pay for additional materials that would help him, as well as to compensate a neighbor who would read the materials to him. In a truly bizarre passage from his concurring opinion, Justice Alito spent several pages telling the story of a black preacher and self-professed "king maker" who more or less intimidated New Haven officials into throwing out the results and making sure that African-American firefighters got their share of the bounty. What any of this has to do with "disparate-impact" analysis is beyond me.

Then again, I have a real hard time relating to the world that Roberts, Kennedy and Alito inhabit, and an even harder time understanding and relating to the world that Roberts and Kennedy come from. Perhaps not coincidentally, these are the two justices who have written the Court's most recent and important opinions on race. Roberts wrote Parents Involved and the Court's big voting rights case this term; Kennedy, who, obviously, wrote Ricci, also wrote the opinion in Patterson v. McLean Credit Union (1989), a case that narrowed the "disparate-impact" analysis on Title VII in place since 1971 so substantially that it led Congress to enact the Civil Rights Act of 1991 to restore it. The 1991 law, not the "original" language of Title VII, formed the basis of the Court's analysis in Ricci. So there you go: another member of the Court's conservative bloc that found himself overruled, except this time by Congress rather than his colleagues on the bench.

As was well documented in their confirmation hearings, Roberts and Kennedy come from a world of affluence and privilege. Neither has ever confronted discrimination at any point in their lives. Elite education from the elementary level through law school, country clubs, well-to-do and privileged families, membership in their chosen professional cities most elite law firms (San Francisco and Washington), federal judgeships while still in their forties and an appointment to the Supreme Court by their 50th and 51st birthdays, respectively. For many who cling to the false calculus of American meritocratic achievement, the personal and professional lives of Roberts and Kennedy are often described as "impeccable" and "ideal." To me, their lives are and have been walled off, by design, from the world that neither has any hesitation in judging and correcting.

And, yes, I am a white male, and just six years younger than John Roberts. But the world in which he grew up could not be more foreign to me. By the time I was 12, I could stand on the street corner on a Saturday in Atlanta's West End and play the dozens with black guys twice my age. I could walk into record stores around the corner from where my father had his clothing stores in the 1960s and 70s and recognize the music coming through on the sound system. I knew my Motown and I was just starting to learn a little bit about jazz, enough so that I could say, "Holy Shit!" when I learned that John Coltrane, Wes Montgomery, Cannonball Adderly, Wynton Kelly and Philly Joe Jones had all come through, at one point or another, my father's first store, which was located across the street from Paschal's Motor Hotel, which was the destination spot for black jazz musicians coming through Atlanta during the days of Jim Crow. Most of the men who worked for my dad as salesmen and managers were jazz musicians who needed steady day jobs. I could walk the streets of all these now-historic black Atlanta neighborhoods, have my regular stores to stop in and hang out, talk to all the street characters and black professional that befriended me because they knew my dad and never worry about anything. Hank Aaron, Lou Hudson, Orlando Cepeda and many other prominent African-American athletes were regular customers in my dad's store. It never occurred to me then that outside the world of black Atlanta these men were treated as second-class human beings and subject to racial slurs and overt acts of racism. Really, how could anyone not like Hank Aaron, who was an absolute gentleman (although he was a secret smoker. He used to smoke in my dad's store and I remember the first time I saw him light up I got so upset and went in the bathroom and cried)? Not until I was about 10 or 11 did I start to realize how deep and penetrating racism was in the world in which I was growing up.

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From the age of 8 until I went to college, I spent just about every Saturday going to work with my dad, who, at one point, had two or three men's clothing stores around the Atlanta area. By the time I left for college, my dad was down to one store, called "Out of Sight," a homage to the black phrase that became popular in the late 1960s and gradually, like all black vernacular, morphed its way into the lingo of white-hipster wannabes and hippies. I still worked in my dad's store during winter and summer breaks home from college, and I remember how heartbroken I was when my father called me at school around the middle of my junior year to tell me he was closing down his business to move on to some other adventures. As I wrote two years ago, I went back and forth between the white world I lived in during the week and the black world I visited on the weekends. When I needed my first nice watch, I didn't head to a mall store near my house. No, no. I went to the West Side Loan Co., which was the fancy name for the pawn shop around the corner from my father's last store, and visited "Fast Eddie." True to form, Fast Eddie pulled me to the side and opened his jacket to display a cascade of watches, some of which grazed against the handgun he kept tucked into the slacks I recognized from our store (with no back pockets). After I picked out my watch, Fast Eddie refused to let me pay, mentioning something about an "arrangement" he had with my dad. My first stereo also came from the West Side pawn shop. So what if the serial numbers had been scratched off the receiver and the speakers? And once my friends got wind of the deals available at the pawn shop, they didn't hesitate to navigate their way down to this part of now-historic black Atlanta, even though more than one friend asked me if I had ever been mugged or assaulted. Thinking back on it, I'm pretty sure that none of my white middle-class friends was harmed or killed on their way to or from the West Side Loan Co.

This was the world I knew as a child, teen-ager and young adult. I didn't know anyone who belonged to a country club, owned a boat, went snow skiing, vacationed to foreign countries, had parents who drove a car fancier than, say, a Buick or Mercury. I didn't know what "preppy" meant until I went to college and sat next to a girl in my Introduction to Western Civilization class who was dressed in a plaid skirt that came to the knees, a green cardigan sweater, an add-a-bead necklace, knee socks and topsiders. I had never heard of the L.L. Bean, Land's End or original Abercrombie and Fitch catalogues, much less seen someone who looked as if he or she had just stepped off the page of one. I didn't know anyone named Courtney or Tucker, who had nicknames like "Muffy" or "Chipster," or called beer "brewski." And I definitely had never seen a guy my age walking around in shorts with whales or crabs on them who could walk up to a bartender and ask for "the usual," or a girl who, at 18 or 19, had already begun dressing like her mother or, even worse, her grandmother. That world was and remains a mystery to me.

Twenty years ago, when I moved to Washington, I thought I was moving to a city in which imagination, perseverance, creativity and a willingness to think and act independently would be noticed and rewarded and not, as it turns out, ignored or punished. I had no idea that entering the professional world and, later, parenthood, meant that I was supposed to devote every waking hour to making sure that my children -- and myself, for that matter -- would not have to associate with the riff-raff, whether in sports, education or in whatever feeble effort we made to introduce them to the "proper" culture. Moving here presented another culture shock for me. I had never seen so many Volvo station wagons carting around children whose educational pedigrees, and those of their parents, were pasted on the rear window. Nor had I ever heard of Martha's Vineyard, Nantucket, Cape Cod or Jackson Hole, or knew that you could go skiing in Utah, much less have a second house in any one of these places. I didn't know that three bedroom house with three bathrooms for a family of four was "too small." I never expected to draw looks of disbelief from my peers when I confessed that my children were attending public schools in the Montgomery County system rather than "securing" a spot for them in one of the ring of elite private schools that populate Northwest Washington and lower Montgomery County. I didn't know that children were supposed to attend "elite" sports or "knowledge" camps during the summer so they could distinguish themselves early enough to be competitive for admission to Oberlin, Swathmore or Harvard. I never anticipated that someone my own age would ask me to "coordinate" with their nanny to arrange a playdate with one of their children, since no one I knew growing up had a nanny or arranged playdates. We just walked around to each other's houses until we found something to do. I had never heard parents congratulate themselves as much as they do here for getting their children into the right private school, select sports team or elite college, then turnaround, without the slightest hint of self-awareness, complain about how "affirmative action" almost kept Rachel, Josh or Courtney from their birthright place in the University of Virginia's class of 2013. And I had absolutely no idea that teaching at the college level was something the accomplished, professional Washingtonian would find attractive once he or she "had made some real money."

Twenty years of living in Washington has not whetted my appetite to enter the world that John Roberts and Anthony Kennedy have lived in for their entire lives. As my own children move closer and closer to getting their own wings to enter a world that bears very little resemblance to the cucoon they have grown up in here in suburban Washington, I realize that the greatest gift of my childhood was not the signed baseball that Hank Aaron gave me when I was eight (which I promptly scuffed throwing grounders with my friends in the street), attending the 1972 MLB All-Star game or my first kiss from Terri Merlin in the 1st grade. Rather, it was exposure to a world that was completely unlike the one most white kids my age had ever seen, much less had the fortune to grow up around. And, that, more than any contemporary theory of constitutional jurisprudence or judicial decision-making informs my disappointment in a Court that cannot understand how the social, political and, above all, racial privilege it is determined to socially engineer from above does not, in any way, shape or form, serve the needs of American society.

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Red State Update

Jackie and Dunlap discuss -- wait, you knew this was coming . . . -- South Carolina Governor Mark Safford's affair with his Argentinian mistress.

Once an asshole, always an asshole

As if the world needed any more evidence that Richard Nixon will always maintain his standing as the most narcissistic, sociopathic and morally bankrupt person ever to serve as president of the United States, new transcripts of the secret White House taping system made famous by Watergate give new meaning to the old phrase, "Once an asshole, always an asshole."

Commenting on the Court's decision in Roe v. Wade (1973), Nixon expressed some "concern" about a constitutional right to abortion, concerned that it might lead to "permissiveness." But what concerned him even more was this:

“There are times when an abortion is necessary. I know that. When you have a black and a white. Or a rape.”

More here.

The burning building theory of constitutional law

Last October, about a month before the presidential election, I wrote a piece for this blog called, "The abortion conundrum." My point was to suggest that the time had come to acknowledge that a constitutional right to abortion was not in danger, regardless of who was elected. Very briefly, I argued that seeing the "abortion-and-the-Court" debate as one that boiled down to the presidential selection of Supreme Court justices failed to take into account the complexities of judicial selection and confirmation. A moot point now, suppose John McCain had been elected. How high on his list would finding justices prepared to overturn Roe/Casey be, given that the voters who would have put him over the top were probably more inclined to support abortion rights than not? How prepared would a Democratic majority in the Senate have been to confirm a nominee with demonstrated opposition to abortion rights? Getting past that, how eager would that new justice be to provide the vote to overturn a right that had been incorporated into the social fabric of the nation for 35 years? Where was the clear constitutional mistake? Did the five Republican-appointed justices who comprised the majority of the seven-person majority in Roe, including Lewis Powell, Potter Stewart and Harry Blackmun, really so radically misread the Constitution or, more importantly, the political sensibilities of a nation that, in 1973, had begun to institutionalize the seminal changes in the status of African-Americans, women and other minorities that had begun in the 1950s?

Keep going. How eager would Republican governors like Charlie Crist of Florida be to sign legislation prohibiting abortions deemed constitutional under Roe and Casey? How willing would any governor interested in re-election or simply in maintaining political leverage outside of this narrow question be in alienating wide swaths of voters who might like Republican economics but cringe at the power of the Christian Right in their party? And how many doctors would stand for a state legislature's decision to wrest control of their medical practices? Do governors really think there is something advantageous about turning on the evening news to see doctors and female patients being led out of a medical building in handcuffs? Or worse, negotiating the blinding speed with which information is distributed on the Internet, including You Tube and other real-time websites and blogs?

Beyond the drama surrounding a post-abortion rights world, I also offered this take on the justices' approach to the abortion question:

Have you ever been in a conversation where you insisted that you'd go back in a burning building to retrieve your favorite things, rescue your or your children's cat, climb the fire escape to help the kindly old gentleman who lives four doors down from you and always remembers your birthday or to save the wheelchair-bound elderly woman who is always there for you when you need to discuss your personal problems? Of course. We all have. Yet, would we actually go back into the building to save a cat, rescue a person who isn't related to us or retrieve family photos? The only honest answer is that we don't know. Until you are actually faced with a choice that, until that point in time, has only been an abstract point of discussion, you really have no idea what you are doing to do.

My point, which I abbreviate here and made better in my previous post, is that, despite the misguided assurances of so many political scientists that we can "predict" the outcome of Supreme Court decisions by cobbling together sophisticated mathematical models that take into account personal attitudes, social background, political party, the number of questions the Justices ask the advocates appearing before them and so on, there are sometimes cases, arriving at a certain point in time and so fraught with social and political consequences, that put the Court in a similar position as the people standing outside the burning building. For lack of a more clever description, I refer to cases like Casey and yesterday's decision in the Court's most closely watched case of the term, Northwest Austin Municipal Utility District Number One v. Holder (2009) as examples of the "burning building" theory of constitutional law.

In fairness to political scientists, lawyers commenting on the Court's decision to leave Section 5 of the Voting Rights Act of 1965 in place seem, as a whole, schocked -- as in, Casablanca . . . Rick's Cafe . . . gambling, prostitution in a bar "shocked" -- that the same five member bloc that equated "voluntary" desegregation in the Parents Involved decision of two terms ago with the state-imposed system of racial segregation declared unconstitutional 53 years before in Brown v. Board of Education, did not coalesce to strike down the various requirements of Section 5, including the "bailout" and "preclearance" issues. Even Dahlia Lithwick, who covers the Court for Slate and is by far the best at making sense of what the Justices do and why of any of the mainstream correspondents who cover that beat, seemed stunned that the Chief Justice Roberts of April's oral argument in NAMUDNO. Click here for her comparison of Roberts at oral argument with the kindler, gentler Roberts who wrote the Court's majority opinion. Several other excellent legal commentators, including Tom Goldstein at SCOTUS Blog, see Roberts's opinion as an exercise in "judicial minimalism," or the deeper-rather-than-wider approach to constitutional decision-making that first gained traction about ten years ago in Cass Sunstein's influential book, One Case at a Time: Judicial Minimalism on the Supreme Court. Sunstein's basic thesis was this: judges should approach cases from the narrowest perspective possible to minimize judicial intervention in the "democratic process," and leave the tough choices to Congress or the states (or, as in NAMUDNO, other "political subdivisions," such as cities, towns and counties). Judicial minimalism recognizes a place for judicial correction of legislative mistakes, provided those mistakes infringe upon constitutional rights; but takes the gloss of traditional liberal dependence on "enlightened" justices as Platonic guardians (think Ronald Dworkin) of our constitutional rights. Judicial minimalism, as a theory, is really not much more than an updated take on John Hart Ely's Democracy and Distrust (1980) of almost 30 years ago. But Sunstein, like Ely, had (and has) came at "liberal judicial activism" from the critical perspective of a liberal law professor with influence in high places. Sunstein, like Ely, might have a soft spot for the liberal progress engineered by the Warren Court. But he was the liberal's anti-Dworkin, and that made him appear less dangerous to conservatives and more politically appealing to post-modern Democrats like Barack Obama (who, of course, hired his former colleague at the University of Chicago law school after the election to work in the White House).

Four years ago, John Roberts appeared before the Senate judiciary committe and, disavowing his sterling, life-long and not-so-hidden credentials as a social, political and judicial conservative, embraced judicial minimalism as his preferred approach to deciding complex constitutional cases. Four years later, Roberts's record is hardly one that heeds to the "minimalist" philosophy. Not only did his opinion for the Court go much further than it needed to in Parents Involved, it demonstrated a lack of respect, even ignorance, at times, for the nation's history of forcible racial discrimination. On other constitutional questions involving free speech, religion and abortion rights, Roberts has not hesitated to climb aboard the conservative train determined to align the Constitution with the policy preferences of the right-wing of the Republican party. And why not? That's exactly why he was selected, his cynical insistence that he was simply there to "umpire" disputes on the "law" notwithstanding. No reasonable person with an understanding of law and politics should have believed him then, and no one, not even someone as smart as Dahlia Lithwick, should believe him now.

So why did Chief Justice Roberts back off his tough talk at NAMUDNO's oral argument and conclude that it was unnecessary for the Court to decide the constitutionality of Section 5? How was able to get the Court's four moderate-to-liberal justices, Stevens, Souter, Ginsburg and Breyer, to join his opinion? These are, after all, the same four justices who have repeatedly dissented in the Court's string of voting rights cases making it harder for states to design majority-minority districts. (Side note: the Bush administration filed an amicus brief in NAMUDNO asking the Court to let stand a lower court's ruling leaving the Section 5 requirements in place. Why? Since the late 1980s, Republican justice departments have accepted the quid pro quo in many of the states covered by the 1965 law, exchanging solid African-American districts designed to elect black Democrats for white, suburban districts that have sent white Southern Republicans to Congress, thus breaking the back of the New Deal alignment between Northern and Southern Democrats that harkened back to Reconstruction. Republicans exceed the number of Democrats representing districts in the former Confederacy, although that moved in the opposite direction in the 2008 election. Every Republican is white; every African-American representing a Southern congressional district is a Democrat. This is no accident).

I think the answer is fairly self-evident. Too much was at stake in this case, coming down just eight months after the election of the first African-American president of the United States, for Chief Justice Roberts to risk his reputation over. Just four years into what promises to be a long turn at the helm of the nation's highest constitutional court, Roberts would be forever saddled with the monicker as having been the chief justice who presided over the demise of the nation's most important civil rights law. His opinion contains none of the moral equivalencies between race-based remedies and the pre-Brown system of America's public education system, which radiated the stench of state-imposed segregation far beyond the Southern states. Roberts spoke respectfully of the 1965 law's successes, which he called "undeniable," and acknowledged that it took that law to kick-start the 15th amendment's promise that the right to vote shall not be conditioned upon race, color or previous condition of servitude. And, quite honestly, his criticism of the current status of the law compared with the conditions that existed when the law was passed are quite reasonable. In fact, if the worst thing to come out of this case is that Congress has to clean up Section 5 and bring the "preclearance" requirements into line with the changes that the law helped create, that's actually a positive development. A Democratic Congress with 41 African-American members in the House and the nation's first African-American president are in a much better position to satisfy the Court's concerns about Section 5 than had this decision come down in the early 2000s or during Newt Gingrich's reign of terror in the 1990s. The lawyers reading the Court's opinion are right about one thing, though: Congress had better move quick.

After years and years of criticizing the 1965 law, a record that goes back to his time in the Reagan justice department, a department that was the most hostile of any presidential administration to the rights of African-Americans since the modern civil rights era began in the early 1950s, Roberts blinked at the opportunity to turn a professional lifetime of caustic rhetoric on race into the big victory that conservatives, in government and in the right-wing public interest bar, have wanted for years. No, this wasn't some legal theory driving Roberts's decision . . . judicial minimalism or, as disgruntled dissenter Clarence Thomas suggested, an ill-timed use of the "doctrine of constitutional avoidance." Rather, Roberts's rhetoric caught fire, and he chose to stand outside rather than enter a building that, engulfed in flames, would have burned his reputation to the ground.

Tom Tomorrow here

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Chief Justice Roberts blinks

Earlier today, the Supreme Court, with Chief Justice Roberts writing for an 8-1 majority, declined to pass judgment on the constitutionality of Section 5 of the Voting Rights Act of 1965, the most important piece of civil rights legislation that Congress has ever passed.

I plan to write something for tomorrow after giving the Court's opinion and Justice Clarence Thomas's dissent another reading. For now, you can get the Court's opinion here.

Tom Tomorrow here

Click here to see the new Tom Tomorrow cartoon.

Red State Update

Jackie takes a stand on gun violence in America, while Dunlap argues that Americans should not give up their First Amendment rights because of gun nuts.

Domestic terrorism

Just a little over three weeks ago, former Vice-President Dick Cheney and President Barack Obama gave "dueling" speeches on national security, terrorism and American compliance (or lack thereof, in Cheney's case) with the rule of law, both at home and abroad. Obama spent most of his speech attempting to persuade his supporters and critics that he would not back down from "foreign" terrorist threats; but neither would he "compromise" what he called "American values," which, in Obama-speak, can loosely be described as a hybrid between John F. Kennedy cold warrior toughness with a baby-boomer sensitivity to human rights, the rule of law and a belief that the United States cannot promote democracy if it stoops to the level of its enemies. The latter point is particularly important. A nation that wants to promote liberal democratic principles, which include not only a commitment to free and fair elections but an equal commitment to civil rights and liberties, must lead by deed as well as word. To emphasize the importantance of this latter commitment, Obama gave his speech at the National Archives, which houses the original Declaration of Independence, the Constitution and the Bill of Rights.

About a mile or so a mile away, Cheney gave a speech before a group of like-minded well-wishers at the American Enterprise Institute, an organization charitably described by the mainstream media as a "conservative think-tank." Twenty years in Washington has left me with a decidedly different impression of AEI. Not much thinking goes on over there. Rather, AEI functions as a disapora for right-wing propagandists killing time between Republican administrations. Lots of "serious" talk about the Framers' original intent, why free markets cure all problems, including bathroom mildew and funny car noises and, naturally, why war, or, at minimum, a "military response," is the solution to any sort of bad behavior by any country that either doesn't like us (Iran, North Korea, Canada) or network of "bad guys" that qualifies as a terrorist organization (al-Qaeda, SPECTRE, Nancy Pelosi-Barney Frank-Harry Reid). Since the November 2008 presidential election, the former vice-president, having spent a good deal of his two terms accusing anyone who didn't agree with him or the Bush administration of "treason" or indifference to "terrorism," has been touring the right-wing media or appearing before right-wing audiences like AEI to criticize the Obama administration's approach to national security, which, sadly, appears to sympathize far too much with the "terrorists" by insufficiently torturing them and suggesting that the United States should treat the world's Muslims with respect rather than as a 1.8 billion person sleeper cell.

I didn't read the full transcript of Cheney's speech until just recently. Dishonest, accusatory, replete with double-talk and shamelessly self-congratulatory, Cheney's remarks are so appalling on so many different levels that only what the brilliant political cartoonist Tom Tomorrow calls the "Rightwingoverse" can possibly ascribe any seriousness to them. But one passage caught my eye, perhaps because I had read Cheney's speech so closely in conjunction with the most recent terrorist attack perpetrated on American soil -- the murder of a Holocaust Mueseum security guard by an 88 year-old white Christian American-born terrorist. I'll get to that in a minute. But first, read Cheney's remarks:

To put things in perspective, suppose that on the evening of 9/11, President Bush and I had promised that for as long as we held office – which was to be another 2,689 days – there would never be another terrorist attack inside this country. Talk about hubris – it would have seemed a rash and irresponsible thing to say. People would have doubted that we even understood the enormity of what had just happened. Everyone had a very bad feeling about all of this, and felt certain that the Twin Towers, the Pentagon, and Shanksvillewere only the beginning of the violence.

Of course, we made no such promise. Instead, we promised an all-out effort to protect this country. We said we would marshal all elements of our nation’s power to fight this war and to win it. We said we would never forget what had happened on 9/11, even if the day came when many others did forget. We spoke of a war that would “include dramatic strikes, visible on TV, and covert operations, secret even in success.” We followed through on all of this, and we stayed
true to our word.To the very end of our administration, we kept al-Qaeda terrorists
busy with other problems. We focused on getting their secrets, instead of sharing ours with them. And on our watch, they never hit this country again. After the most lethal and devastating terrorist attack ever, seven and a half years without a repeat is not a record to be rebuked and scorned, much less criminalized. It is a record to be continued until the danger has passed. (Italics mine)

Along the way there were some hard calls. No decision of national security was ever made lightly, and certainly never made in haste. As in all warfare, there have been costs – none higher than the sacrifices of those killed and wounded in our country’s service. And even the most decisive victories can never take away the sorrow of losing so many of our own – all those innocent victims of 9/11, and the heroic souls who died trying to save them. (Italics mine)

For all that we’ve lost in this conflict, the United States has never lost its moral bearings. And when the moral reckoning turns to the men known as high-value terrorists, I can assure you they were neither innocent nor victims. As for those who asked them questions and got answers: they did the right thing, they made our country safer, and a lot of Americans are alive today because of them.

Less than two weeks after September 11th, 2001, Bruce Ivins, a research scientist at the United States Army Medical Research Institute of Infectious Diseases in Fort Detrick, Maryland, which is located about 45 minutes north and west from the White House and about 20 minutes south from the presidential retreat, Camp David, began mailing anthrax to news outlets in New York and elected officials in Washington. By October 16th, the first victim to come into contact with an anthrax mailing died. By the time Ivins's terror campaign came to a close, six people died and dozens more were sickened. Naturally, the Bush administration assumed that the anthrax terrorist was somehow affiliated with al-Qaeda, and Cheney led the charge: "I think the only responsible thing for us to do is proceed on the basis that it could be linked [to the September 11th attacks]," adding that the United States had ample evidence that bin Laden's followers were trained in how to spread biological and chemical weapons.

Missed that one by a mile, didn't he? Bruce Ivins sat, almost literally, in the president's backyard, and the Bush administration couldn't figure out where and how a terrorist attack launched within two weeks of September 11th originated or who did it. The Department of Justice finally tracked the attacks to Ivins, who committed suicide in late July 2008 after he learned that the FBI was about to arrest him for the anthrax attacks. For four years, the FBI pursued another research scientist named Stephen Hatfill, who was exonerated in August 2008 and awarded a settlement of almost $5 million for the damage done to his reputation and career as a result of government's wrongful prosecution.

I remember well the immediate period after the first anthrax letter turned up in NBC's New York offices. Work-study students in our office were opening mail with sanitary gloves and surgeon's masks, as if that would have prevented anyone from getting sick or dying. Families in my neighborhood sealed their mail slots and left letters for postal carriers asking them to leave the mail in a cardboard box on the front steps. My children's public school no longer accepted any mail from "unofficial" sources. And the list goes on and on and on. Ivins's planned, thought-out and carefully calibrated decision to attack innocent citizens by mailing deadly germs in an envelope brought the Bush administration's repeated warnings that al-Qaeda would use "weapons of mass destruction" to kill Americans to life. But once the administration lost interest in pursuing the source of the anthrax terror attacks, largely because it couldn't pinpoint it, you ceased to hear the word "terrorism" associated with anthrax. An occasional article might refer to Ivins's anthrax mailings as an "act of bioterrorism." Since Ivins did not have an "al"- prefix attached to his name or hail from a Muslim country, he was more often classified as just good old-fashioned homegrown American nutcase.

* * * * * * * * * *

During the eight years of the Bush administration, from January 20th, 2001 to January 20th, 2009, approximately 105,000 Americans were murdered by someone wielding a firearm. By any definition, the decision of one person to kill another person is an act of terror. Let's go further and say that any person who rapes, robs, sexually assaults, sexually abuses or beats to near death another person commits an act of terrorism. Over the past twenty years or so, many state legislatures and even Congress have defined some of these acts as "hate crimes." Hate crime legislation generally has a two-fold purpose: (1) to gather information on "targeted" crimes, i.e., those motivated by "animus" on the basis of race, religion, sexual orientation, sex, etc. so that law enforcement agencies can better locate and police these crimes and (2) to permit government authorities to ask for harsher sentences for crimes classified as "hate crimes."

The Bush administration position on "hate crimes" legislation? It opposed every such bill submitted to Congress, including the Matthew Shepard Hate Crimes Prevention Act, which would have authorized the federal government to pursue harsher penalties against the perpetrators of anti-gay violence.

On guns, the Bush administration continued the long-standing Republican tradition of supporting the right of Americans to arm themselves to the teeth. But Dick Cheney went an additional step that no other administration official, Republican or Democratic, had ever taken on guns: that the right to own a gun was guaranteed by the Second Amendment. In 2008, when the Supreme Court declared D.C.'s handgun control law unconstitutional on Second Amendment grounds, the Bush administration argued to strike the law down, but stopped short of saying that the Second Amendment guaranteed a right to own a weapon. Cheney was unhappy with the administration's more nuanced position, as reflected in Solicitor General Paul Clement's brief, so he signed on to brief submitted by over 300 members of Congress asking the Court to declare the D.C. law unconstitutional per se.

Indifference to the approximately 13,000 murders that take place in the United States every year is doing everything within his power to prevent terrorism? Or is American murdering another American not an act of terror?

* * * * * * * * * *

Think about that one for a minute. The vice-president of the United States freelances a legal position beyond the legal argument that his boss's Justice Department is taking before the Supreme Court. I looked to see if there was any precedent for that. There isn't.

* * * * * * * * * *

In late May, Abdulhakim Mujahid Muhammad, a 24 year-old man from Little Rock, Arkansas, once known as Carlos Bledsoe, walked into a local armed forces recruiting center and started shooting at soldiers in front of the building. Authorities determined that Muhammad had "political and religious motives" to kill personnel working at the center. He is being tried for first-degree murder and 15 counts of engaging in a terrorist act.

On May 31st, Scott Roeder walked into a Wichita church and shot Dr. George Tiller, a local physician who, until then, performed late-term abortions. Roeder's thought out, religiously and politically motivated decision to kill a civilian doctor was not the first time that someone opposed to legal abortion had taken a shot at a doctor who performed abortions. Since 1989, there have been 23 attempted murders or murders of persons who work at abortion clinics -- 24, if you include Roeder's murder of Tiller -- and thousands of attempted bombings, assaults, break-ins, acts of vandalism, anthrax hoaxes (which soared, by the way, after Ivins lanched his anthrax terror attacks through the mail). Not a single person charged in any of these crimes has been charged with commiting an "act of terror." That includes Roeder, who is being charged with first-degree murder and aggravated assault.

* * * * * * * * * *
Just to see what would turn up, I googled (that is a verb now, right?) "shooting day care center united states."  On the first three pages, I found shootings, some lethal, that had taken place at day care centers in the Washington, D.C. suburbs, a small town in Michigan, a town I had never heard of in North Carolina, a town in Alabama, another town in Texas and . . . and . . . more shooting in more cities and towns across the United States. I was going to google "shootings public schools United States" to see how often the Columbine scenario has played out across the country since that awful day in April 1999, when Eric Harris and Dylan Klebold slaughtered 13 teachers and classmates and then killed themselves in an act of carnage that horrified and shocked the country. Eight years later, Cho Seung-Hui, a Virginia Tech undergraduate, turned his guns on 33 teachers and students before killing himself.  Neither massacre was described as a terrorist attack or an "act of terror." They were alternately described as "mass murders" and "mass shootings," which they certainly were.  But had the shooters been individuals of Arab surnames or self-identified with some "terrorist" group or cell, these events no doubt would have been labeled as "acts of terror." Since they weren't, they get demoted to "mass shootings" that "horrify and shock" the country, even though killing sprees like these have a long and ignoble history in the United States.

"American exceptionalism" is one of those manufactured myths that has a strong hold on the social and political culture of the United States.  "Exceptionalists" believe that the United States is somehow better than any other country at pretty much everything, with the exception of maybe soccer, ice hockey and designing and manufacturing cars, for no other reason than Americans say so.  The professed basis for American exceptionalism is our historic commitment to liberal democratic institutions, the protection of individual rights and the absence of formal constraints on economic and social mobility. The truth is much more complex and often not very pretty.  This is a topic deserving of its own post, and that day may well soon come.  For now, though, Americans can rest assured that their country stands at the top of the mountain in one place for all the world to see: the United States is by far . . . by far  .  . . the most violent democratic nation in the world.  For sheer volume, no other nation comes close to the annual rate of approximately 12,500 murders per year that we do. But there's more --  Americans kill each other at a higher rate per capita than in any other country in the world.

Exceptional, eh?

* * * * * * * * * *

So let the deep-thinkers of AEI nod their heads as the former vice-president huffs and puffs about his "success" in making the country safe from terrorism. Nod away, boys (and they are mostly boys, offset by the occasional female scholar who warns against the evils of feminism, affirmative action, Hollywood and judicial activism while extolling the virtues of the free market from a perch funded by institutional donors and wealthy benefactors and thus largely insulated from those very same forces), as you're about the only people left who still believe that the Bush administration did anything positive during the eight years it unleashed one disastrous policy after another on the country. Let Dick Cheney take all the credit he wants for "preventing" people with Arab surnames or Islamic sympathies from entering the United States to kill innocent Americans.  The ownership of language is a privilege that accords with political power.  Now that the Bush administration is just an unfortunate memory, albeit one that has and will continue to have terrible consequences, perhaps we can now disengage the word "terror" from the convenient and stilted definition that the Cheneys of the world (and their enablers in the mainstream media) gave it and recognize the word for what it really means and the broad range of horrific, violent acts right here at home to which it equally applies.

Tom Tomorrow here

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Poor little rich hipsters

Not even the Trustafarians are exempt from this recession. Have Chucks, a PBR, skinny jeans and a healthy disdain for conventional produce . . . but nowhere to go.

Red State Update

Jackie and Dunlap review the weeks events, including President Obama's speech to the Muslim world, Dick Cheney's possible book deal and what he'll tell the world, and Sonia Sotomayor's nomination to the Supreme Court.

Racists outraged by racism

Earlier in the week, I asked a friend of mine who hosts a popular on-line "chat" program for a well-trafficked on-line newsletter/magazine/whatever something like this is called, whether his colleagues in the establishment Washington media truly understood the irony, if not absurdity, of asking such Republican celebrities as Newt Gingrich, Rush Limbaugh, Pat Buchanan and Glenn Beck, or air-head frat boys like Tucker Carlson, to comment on Supreme Court nominee Sonia Sotomayor's comments about how her ethnic heritage and background affect her approach to law and constitutional rights. In the case of Limbaugh and Buchanan, that's like asking Adolf Eichmann whether he thinks Woody Allen's movies are too Jewish. As for Gingrich, he's Exhibit #1 for the old Lyndon Johnson adage that there's no such thing as bad publicity for a politician, just no publicity. Naturally, if you add in an occasional albeit inexplicable observation that one day we will have a student exchange program, funded by the private sector, of course, with our Martian friends . . . in our lifetime, you become, in the eyes of the establishment media, an "interesting" person with "big" ideas. Not ideas that have any relevance to reality, or are the least bit workable, or are actually thought through. As long as you don't mention such phrases as "election cycle," "the process," use adjectives like "train wreck" or "Draconian," or mention how some obscure small state governor, like "30 Rock" Kenneth the Page act-a-like Bobby Jindal of Louisiana, or a one term small town assemblyman represents the future of the Republican party or is a possible candidate for the Republican presidential nomintion in 2012, you qualify as a Beltway intellectual. Newt the Frewt is an intellectual like Mark Russell is a political satirist or the Capitol Steps are a comedy troup -- only in Washington.

As for Tucker Carlson, who knows why anyone would want his opinion about anything? Yet, and not suprisingly, there are those who do. Then again, these are largely the same people who thought Sarah Palin, who was the future of the Republican party either slightly before or after Bobby Jindal was the future of the Republican party -- I honestly don't remember who came first -- was hot.

No, really, Palin had Washington men getting all weak-kneed in their penny loafers and Washington women trading in their Spectator pumps, Hermes scarves and Talbots suits for something more racy to keep their men in check, like a Land's End skirt or outdoorsey and rugged, like an L.L. Bean Gore-Tex jacket with a silver triangle on the back.

. . . back to my friend. His answer: "I get 300 calls on a live chat for almost any guest I choose. For Newt, I get 5,000. It's all show business; not journalism."

At least he's honest. But isn't there some line that even a huckster like Gingrich, whose career long ago devolved into a "Spinal Tap"-like self-parody of himself, can't cross before being placed on that dreaded "DO NOT CALL" list of former administration officials, political strategists, kidnap victims and Capitol Hill insiders? Gingrich's public statement that Sotomayor was a "racist" for commenting in an old speech that her experience as a Latina woman gave her insight into certain issues that differed, by and large, from a white man revealed far more than his own stupidity. The episode also revealed the tired pattern of the establishment media relying on the same old hacks, frauds and has-beens for "commentary" on matters about which they know nothing or, even if they know something, are uniquely unqualified to assess.

Oh, there's so much more to say. But Joe Conason at Salon says it all much better here.

Downbeat at 75

Downbeat, America's oldest magazine devoted to coverage of jazz, celebrates its 75th anniversary this month.  The July issue, available to subscribers but not yet in stores, features interviews and profiles on musicians culled from 1934 to the present. There is a great profile on Benny Goodman's decision in the mid- to late 1930s to integrate his band and then subsequently dare promoters and club owners not to hire what was then then the nation's pre-eminent swing band; another one with Louis Armstrong, who believed that "bebop" might well ruin the audience for jazz; critical comments on Dizzy Gillespie and Thelonious Monk, who were viewed initially by the mainstream jazz press as heretical and anti-musical; a terrific feature on Dave Brubeck, who responds now to articles written about him dating back to the early 1950s; a long piece on Sonny Rollins; and much, much more.

You can pick up some features on-line by clicking here. The 75th anniversary edition should be available in about a week or so.

Tom Tomorrow here

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