“Serious Equal-Protection Concerns”: Justice Sotomayor’s Powerful Defense Of Equality
Yesterday, the Supreme Court upheld a provision of Michigan’s constitution that bans the state or any of its subdivisions from “grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor’s dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far.
The case for upholding Michigan’s amendment, which was adopted through the ballot-initiative process, seems compelling at first glance. Even if one agrees that affirmative-action programs are generally constitutional, it surely cannot be the case that the Constitution requires states or the federal government to adopt affirmative-action policies. Had Michigan never adopted affirmative-action policies or had the legislature repealed them, this would presumably not raise a serious constitutional question. So why wouldn’t the citizens of Michigan be able to make the same policy choice? “There is no authority in the Constitution of the United States or in this Court’s precedents,” Kennedy asserts in the plurality opinion, “for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”
In the most relevant precedent, the Court ruled in 1976 that a Washington constitutional amendment that banned the use of bussing to integrate schools violated the 14th Amendment because it “impose[d] substantial and unique burdens on racial minorities.” Joined by Justice Ruth Bader Ginsburg, Justice Sotomayor makes a powerful argument that this and related precedents require the Court to strike down the Michigan initiative.
The core of the Court’s “political-process” precedents, Sotomayor observes, is that minorities have access to the state’s democratic procedures. The Constitution “does not guarantee minority groups victory in the political process,” but it does “guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures.” Reallocating power in the way Michigan does here therefore raises serious equal-protection concerns.
Sotomayor’s dissent cites a landmark Kennedy opinion: Romer v. Evans, in which the Court struck down a Colorado initiative forbidding the recognition of sexual orientation as a protected category under existing civil-rights laws. Sotomayor observes that Romer “resonates with the principles undergirding the political-process doctrine.” The Court forbade Colorado from preventing a disadvantaged minority access to the state and local political processes, even though states are not constitutionally required to pass civil-rights laws.
Sotomayor’s dissent also offers a useful defense of the political-process doctrine and its strong roots in the 14th Amendment. Starting with the famous fourth footnote of Carolene Products in 1938, the Court has held that state actions that burden minorities should be subject to heightened judicial scrutiny. When burdens are placed on minorities that affect access to the political process, the possibility of discrimination is particularly acute, allowing exclusionary politics to become self-perpetuating.
It is instructive that in their concurrence Justices Antonin Scalia and Clarence Thomas mock the influence of Carolene Products: “We should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.” This is grimly ironic, given that Justice Scalia and Justice Thomas recently joined an opinion gutting the Voting Rights Act based on highly implausible bare assertions made by dicta in an opinion written by Chief Justice Roberts less than five years ago. With respect to Carolene Products, conversely, what matters is not merely the footnote in one opinion but the fact that it conforms to the 14th Amendment, and was elaborated on in many subsequent cases. Several of these precedents were the political-process rulings that were supposed to control the outcome in yesterday’s case. As both Scalia from the right and Sotomayor from the left argue, it’s hard to deny that these precedents have been silently overruled, even if the plurality says otherwise.
The consequences of Michigan’s constitutional amendment illustrate the ongoing relevance of the Court’s equal-protection precedents. As the dissenters point out, the percentage of African-American students getting degrees from the University of Michigan was the lowest since 1991 after the amendment passed. In addition, the percentage of racial minorities in freshman classes at Michigan’s flagship university has steadily declined—even as racial minorities comprise an increasing percentage of the state’s population. This does not in itself prove that the Court was wrong to uphold it, but it does show that the elimination of affirmative action is unwise, and at a minimum the Supreme Court should show deference to elected decision-makers who determine that it is necessary.
By: Scott Lemieux, The American Prospect, April 23, 2014
“What’s Wrong With Gun Registration?”: Impeded By Gun Proponents Stirred Up And Financed By A Cynical Commercial Gun Lobby
I live in Maryland, whose nickname is the “Free State,” and I am no less free because of the laws in my state require registration of handguns and prohibit the more dangerous varieties of firearms, magazines and ammunition. In fact, I feel more free because I have less fear of being blown away, freedom and all, than I would have if guns were less regulated.
Very few people have serious objections to registration of activities in many other contexts; we register our cars, dogs, bicycles, burglar alarms, births, deaths, marriages and our kids into schools every day. Even with no military draft, we have draft registration. Many people have totally given up on privacy in giving any information to businesses. But guns are treated differently. Why? One reason is that we are inundated by demands that we do so from loud gun proponents stirred up and financed by a cynical commercial gun lobby. Another is we all have at least a little bit of rebellion in us and we can dream of throwing off the restraints of civilization and of running wild.
But we should not forget that this dream is a dream of going back to the state of nature and, as every one knows, the state of nature is where life is “nasty, brutish and short.” It certainly was short for the twenty children and six teachers who died at Sandy Hook Elementary School and the thirty thousand or so who died from gun incidents last year.
The slogan or talking point “registration always leads to confiscation” has been taken up and repeated so many times that it seems impossible to trace its origin. Of course, law enforcement agencies, whether tyrannical or benign, have seized illegal items as part of their duties throughout history; but the picture being painted by gun zealots is of “jack-booted thugs” from the federal government taking the tools of liberty from true patriots. An example of this is currently happening in New York State where the SAFE Act requires registration of assault weapons. Many owners are being reported as unwilling to comply.
Seizure of weapons that are illegal, held by prohibited persons or not brought into compliance with licensing requirements is being presented as a sinister conspiracy rather than normal law enforcement. A U.S. congressman, Steve Stockman (R-TX), has just introduced a bill to cut off federal funds to states engaging in “registration” or “confiscation” of guns.
The NRA expresses fear of government tracking in amazing detail. For example, it filed a Friend of the Court brief against National Security Administration data collection on the grounds that such data could identify firearm ownership, siding with the ACLU.
Lots of people have frustrations about the current state of society and it’s easy to project these frustrations onto the government, but we don’t live in a tyranny and President Obama isn’t a totalitarian dictator. We have an amazing array of freedoms which would be severely put in jeopardy if we did have a revolution. The existence or even the perception of armed angry people hiding their identity among us and waiting to spring forth diminishes our ability to find happy, productive and unmolested lives. In our society, the vast majority of our citizens stand for enforcement of the law as it is adopted by our representatives in legislatures or Congress, and even the NRA calls for the enforcement of laws while they work to make that enforcement impossible.
So those of us who don’t live our lives in paranoid fear and can sleep without having a gun under our beds can ask why we would want to insist that guns be registered with the government. The most important reason is to keep guns out of dangerous hands. Our existing system for that purpose is to background check some sales of guns, but there is an immense loophole for private sales in most states. Anyone with an interest in getting a gun knows where to buy one without a check being performed. The background check system also is dependent on identifying from the entire population, not just those wanting to acquire guns, those who are prohibited and keeping that list in databases. A registration and permit system would apply to all sales and require determining the suitability of only those wanting to buy a gun at the current moment.
Another limitation of background checking is that it assumes that a person passing the check will remain a legal gun possessor indefinitely. Many of the situations that are denounced as confiscation consist of a government moving to seize guns already in the hands of people who are later convicted of crimes that make their continued gun possession illegal. Getting these guns out of the hands of their now illegal owners is critical to protecting the public but is slowed and blocked by resistance from legislatures and pro-gun forces.
A gun registration system can also serve the goals of preventing legal owners from letting their guns get into illegal hands in secondary ways. It can include a requirement that gun transfers, losses and thefts be reported. This will help greatly in investigation of illegal guns seized on the street and of incidents of gun violence.
If firearm registration remains politically infeasible, there is another way to accomplish most of these goals. That is to have insurance, starting at manufacture and requiring continuance of insurer responsibility through all transfers unless replaced by new insurance. Readers who know my writing know I spend most of my time advocating such insurance in the face of massive resistance from both the gun and the insurance industry.
By: Tom Harvey, The Huffington Post Blog, April 22, 2014
“It Makes No Sense”: Why Do People Vote Against Their Own Best Interests?
This question has stymied political strategists and pundits for a long time. As an expert in the women’s market, I too am baffled by the way people, especially women, vote against those who share their ideals and values in lieu of voting for those who don’t.
I have frequently been asked and often pondered the question: “Why would a woman vote Republican when they clearly have a war on women?” I wish I had a great answer for this. Perhaps they have always voted Republican, and thus continue down this path. Perhaps they are wealthy and the tax breaks the Republicans fight for, that primarily benefit the rich, is the most important reason. Perhaps they believe the falsehoods and phony rhetoric of the Republican Party. Whatever the reason, I find it truly disturbing.
Both women and men should vote for elected officials whose actions show that they have the best interests of the citizens and country in mind, but for some reason, they don’t.
While I acknowledge that many Republican women are pro-life, offering choice, rather than a one-size-fits-all approach, just makes good sense. I’m not advocating abortion; I am saying that I should have the choice to decide what is best for me and my family.
Equally troubling is why Republican women support a party who barely passed the Violence Against Women Act, who don’t support legislation to guarantee that a women receives equal pay for equal work, and who think women’s bosses should have the right to determine her health care and reproductive decisions.
As Republican governors refuse to accept billions of dollars in free federal money to expand Medicaid, hundreds of thousands of people are going without medical care and are dying needlessly. As the GOP continues to cut billions from food stamps, many women and children are going hungry.
Men are also hurt by the policies of the Republican Party. Many men support the party because they are pro-gun, but Republicans also vote to keep the minimum wage at poverty levels and are against extending unemployment benefits. These policies hurt the working class.
Republicans want to reduce government spending and control, but I wonder if the populace realizes that many solidly red states that they live in receive a huge percentage of their income from the federal government? In actuality, the amount many red states pay in federal taxes is small compared to the amount they receive back from the government.
Do they think about how the government spends this money building the roads they drive on daily, or providing funds for the fire department that comes to their home if there is an emergency? When a natural disaster strikes them, do they accept F.E.M.A’s help? These and many more necessities are government-funded programs.
To cut spending on these and other projects as the Republicans suggest, would greatly impact both the men and women in these states in a very destructive way. It reminds me of the old saying, “cutting off your nose to spite your face.” It makes no sense.
In reality, the Republicans don’t want to cut spending, just redistribute it from the poor and middle class to the wealthy. The Republican budget once again gives massive tax breaks to the wealthiest Americans, while it cuts programs and safety nets that help many of the people who vote Republican. I don’t understand why people vote against their own best interests, especially when it hurts their family, the economy and the principles on which America was founded.
I respect the two-party system and believe it is healthy for a democracy to have differences that exist in many areas of fiscal and social governance. But the right-wing fringe has hijacked the sanity of the Republican Party, and the GOP needs to get back on track. Gerrymandering, suppressing the vote, allowing unrestricted funds and unlimited terms have led to undemocratic practices which will destroy America if voters don’t stand up and fight for what is right.
Citizens, whether Republicans, Democrats or Independents, all have much to gain by voting for politicians who are interested in the good of the country: working together, listening to each other, and compromising. If they continue to choose representatives who do not support our fragile Democratic Process, citizens will soon have more reasons to fear Washington D.C. than foreign terrorists.
By: Gerry Meyers, CEO, President and Co-founder of Advisory Link;The Huffington Post Blog, April 21, 2014
“A Shallow Television Political Reporter”: NBC Analyzing Poor David Gregory To See What Makes His Show So Bad
If it’s Monday, it’s NBC embarrassing itself in front of everyone. Today, the Washington Post’s Paul Farhi brings us the story of a network that can’t figure out why “Meet the Press” isn’t the runaway ratings smash it used to be. (This is not the first piece of this year exploring that subject.) Is the problem host David Gregory? They sent in experts to figure it out:
Last year, the network undertook an unusual assessment of the 43-year-old journalist, commissioning a psychological consultant to interview his friends and even his wife. The idea, according to a network spokeswoman, Meghan Pianta, was “to get perspective and insight from people who know him best.” But the research project struck some at NBC as odd, given that Gregory has been employed there for nearly 20 years.
Well, how absolutely humiliating, to have this reported in the Washington Post. (NBC disputes the use of the word “psychological,” claiming they brought in a “brand consultant.”)
Is there something psychologically wrong with David Gregory? No, besides the usual superhuman vanity of a television professional. He is just not a great host of a news talk show! He is incurious. He asks predictable questions and is not informed enough to ask follow-ups that go beyond the scope of his briefing materials.
“The Right’s New Racial Math”: How Its View Of Nonwhite Voters Got So Demented
The news is so depressing for conservatives these days. All the demographic trends are moving against them.With every election showing a large majority of single women, young people and people of color voting for the Democrats, thus solidifying their identification with the party, the less likely it is that Republicans can outrun the shift to a multiracial majority. But they still don’t seem to understand exactly what this means for them.
Take, for example, Michael Medved’s latest in the Wall Street Journal in which he explains that the Democrats’ strategy of wooing women voters by pointing out the GOP’s hostility to reproductive rights and equal pay is nothing but a sham. Sure, Barack Obama won the female vote by a commanding 11 points in the last election but it’s not as if he won a mandate for his message. After all, he lost the white female vote:
A closer look at the numbers reveals that Mr. Obama’s success with the ladies actually stemmed from his well-known appeal to minority voters. In 2012, 72% of all women voters identified themselves as “white.” This subset preferred Mitt Romney by a crushing 14-point advantage, 56% to 42%. Though Democrats ratcheted up the women’s rhetoric in the run-up to Election Day, the party did poorly among the white women it sought to influence: The Republican advantage in this crucial segment of the electorate doubled to 14 points in 2012 from seven points in 2008. In the race against Mr. Romney, Obama carried the overall female vote—and with it the election—based solely on his success with the 28% of women voters who identified as nonwhite. He carried 76% of Latina women and a startling 96% of black women.
The same discrepancy exists when considering marital status. In 2012, nearly 60% of female voters were married, and they preferred Mr. Romney by six points, 53% to 46%. Black and Latina women, on the other hand, are disproportionately represented among unmarried female voters, and they favored Mr. Obama by more than 2-to-1, 67% to 31%.
A similar pattern emerges among young voters, suggesting the president’s popularity among millennials also came from racial minorities, not any special resonance with young people. While nonwhites compose 28% of the electorate-at-large, they make up 42% of voters ages 18-29. Mr. Obama won these young voters handily—60% to 37%. He lost young white voters by seven points, 51% to 44%.
If the majority of women who vote for Democrats are young, single and black or brown, how can anyone say the war on women was a legitimate issue? True, those votes do come in mighty handy Election Day but let’s take a look at the reality: If young, female racial minorities couldn’t vote, the Republicans would win in a landslide!
I’m sure this makes them feel better. The right women are all on their side. Well, actually it’s just a small majority, even by that unfortunate standard: 46 percent of white women went with the Democrats so I wouldn’t be too sure that they’ve got them quite as locked up as Medved supposes.
This isn’t the first time we’ve heard such embarrassing rationalizations coming from the Republicans after a loss. They often explain that they actually won — it was just all those young nonwhites who messed up the proper results. Take this one from Romney’s adviser Stuart Stevens who explained his boss’s loss this way:
On Nov. 6, Mitt Romney carried the majority of every economic group except those with less than $50,000 a year in household income. That means he carried the majority of middle-class voters. While John McCain lost white voters under 30 by 10 points, Romney won those voters by seven points, a 17-point shift.”
There was a time not so long ago when the problems of the Democratic Party revolved around being too liberal and too dependent on minorities. Obama turned those problems into advantages and rode that strategy to victory. But he was a charismatic African American president with a billion dollars, no primary and media that often felt morally conflicted about being critical. How easy is that to replicate?
It’s interesting how he assumed that none of the African-Americans, women and young people who voted for Obama are middle-class. But then that was the campaign that famously derided “the 47 percent” for being parasites so it’s not all that surprising. He also assumes that the “minorities” the Democrats are traditionally “too dependent” upon will not vote in future elections and thus deliver the presidency to the candidate who represents what are apparently the Real Americans: white people who make over 50K a year.
None of this is to say that studying the demographics of the voting public is unacceptable. It’s a big part of American politics, and slicing and dicing the electorate is how the two parties strategize their campaigns and that’s fine. But to constantly bring up the fact that Democrats can’t win if they don’t have the votes of racial minorities and young people implies that there’s something not quite legitimate about it.
As Politico helpfully spelled out for us in 2012:
If President Barack Obama wins, he will be the popular choice of Hispanics, African-Americans, single women and highly educated urban whites. That’s what the polling has consistently shown in the final days of the campaign. It looks more likely than not that he will lose independents, and it’s possible he will get a lower percentage of white voters than George W. Bush got of Hispanic voters in 2000.
A broad mandate this is not.
Right. The popular choice of all racial minorities, unmarried women and urban whites of of all ages isn’t a mandate. It doesn’t include enough of the right kind of votes. You know, the best kind. The older, rural, married white kind. Also known as “Republicans.”
Michael Medved, at least, understands the GOP’s demographic challenge, even as he foolishly discounts the salience of issues that directly affect half the population, regardless of race or age. He counsels the Republicans to forget women and work harder to attract racial minorities. Here’s a tip, free of charge: A good first step would be to stop talking about their votes as if they aren’t quite as valuable as white votes.
By: Heather Digby Parton, Salon, April 21, 2014
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