“A Growing Inequality”: Not All Kinds Of Inequality Are Created Equal
In America, not all kinds of inequality are created equal.
For the past half-century, the de jure inequality of demographic groups has proven increasingly vulnerable to public pressure. From the Civil Rights Act of 1964 to last week’s Supreme Court decision striking down a key part of the Defense of Marriage Act, legal barriers against racial and sexual minorities as well as women have crumbled. Changes in the law have followed the same pattern: First, a handful of generally radical activists brought attention to the existence of a legal double standard; then, a mass movement grew in support of eliminating discriminatory laws and practices; only after this did government respond with legal remedies.
In each case as well, the movements’ success in diminishing their “otherness” — that is, establishing their full humanity — in the eyes of the majority of their fellow Americans has been key to ending legal discrimination. The shift in public opinion on same-sex marriage, for instance, follows decades when growing numbers of gay men and lesbians felt just secure enough to out themselves to their families, friends and co-workers, in the process normalizing what had been a concealed, and presumably shameful, status. The immigrant rights movement’s focus on the Dream Act kids — young people, many of whom are talented students, brought here as children and still forced to lurk in the shadows — put the most appealing human face on undocumented immigrants. That is at least partly responsible for what is now majority public support for enabling the undocumented to become citizens. (Whether that majority support carries any weight with xenophobic House Republicans, secure in their gerrymandered districts, is another question.)
Some forms of legal inequality persist in other guises. Another Supreme Court decision last week, striking down provisions of the Voting Rights Act that limited discriminatory practices in particular Southern states, will make it easier for black and Latino electoral participation to be limited. Just as those states once required voters to pass absurd tests or pay taxes to vote — measures almost always designed to apply only to blacks — now they will likely require voters to produce documents that the poor and students disproportionately lack (as, in fact, Texas did within hours of the high court’s ruling). Today’s vote supressionists are driven less by discrimination for its own sake than fear that their hold on power will weaken if minorities and the young vote in large numbers.
But while social and legal inequality has diminished over the past century, economic inequality has been on the rise since Ronald Reagan’s presidency. The public policies of the past 30 years — deregulating finance and encouraging the sector’s growth, failing to bolster workers’ declining bargaining power — are rightly understood to have reversed the more egalitarian economic policies of Franklin Roosevelt and Lyndon Johnson. But the economic inegalitarianism of the past three decades also makes a mockery of Thomas Jefferson’s vision of equality, which went beyond mere equality of creation. Jefferson believed that a nation of yeoman farmers was the best defense against the inequalities of wealth and power that would threaten the republic if cities grew too populous. He also believed, of course, in the institution of slavery — the paradox that haunts his legacy and our history to this day.
The belief that diminishing economic inequality would help build a more robust economy underpinned the legislation of both the New Deal and the Great Society. Granting workers the power to bargain with their employers, the preamble to the 1935 National Labor Relations Act states, would increase their capacity to consume and give the economy a shot in the arm. So, too, the 1938 Fair Labor Standards Act, which created the national minimum wage. Social Security and Medicare, by reducing poverty among seniors, also bolstered the national economy. Repeal any one of these and the economy would crumple. Indeed, the de facto repeal of the National Labor Relations Act — as employers have learned to exploit its loopholes and deny employees bargaining power — is a major factor in the decline of wage income.
How, then, do we decrease economic inequality — the one kind of inequality that continues to expand even as other forms contract (if slowly and unevenly)? The challenge isn’t to persuade the majority to embrace a minority but, rather, to embrace itself. Americans tend to blame themselves rather than changes in economic rules and arrangements for failing to achieve financial security. But with most of the nation falling behind, the problem and the solution aren’t individual. Like Jefferson’s generation, Americans must band together to create a more egalitarian land.
By: Harol Meyerson, Opinion Writer, The Washington Post, July 2, 2013
“Antonin Scalia And His Argle-Bargle”: He Doesn’t Want To Be Seen As The Bigot He Is
Justice Antonin Scalia’s dissent (pdf) in U.S. v. Windsor, the ruling that struck down the Defense of Marriage Act, is not subtle in its anger. The conservative Supreme Court jurist refers on page 22, for example, to the “legalistic argle-bargle” the court majority uses as its rationale.
And as Paul Waldman explained, the dissent goes downhill from there.
Scalia is outraged at the majority’s contention that the core purpose of DOMA was to discriminate against gay people, and this, he asserts, means that they’re calling everyone who supports it a monster. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution,” he writes.
And more: “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
Yes, apparently Scalia is feeling a little defensive, so much so that he believes those who disagree with him are calling him an enemy of humanity. One gets the sense reading his dissent that he doesn’t want to be seen as a bigot, just because he’s on record describing homosexuality in his Lawrence v. Texas dissent as “a lifestyle” that should be seen as “immoral and destructive.”
But let’s also not overlook this curious argument from the beginning of his DOMA dissent:
“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. “
Really? When it’s the Voting Rights Act and the Affordable Care Act on the line, Scalia doesn’t hesitate to take an axe to “democratically adopted legislation,” approved by the elected representatives of Americans who are able to “govern themselves.” But when it’s the Defense of Marriage Act, Scalia suddenly remembers his affinity for restraint?
Exactly one year ago yesterday, following some of Scalia’s partisan antics, a constitutional law professor at UCLA said the conservative jurist “has finally jumped the shark.” At the time, that seemed like a reasonable assessment, and yet, Scalia somehow manages to get worse.
Update: Sahil Kapur takes the next step, listing “the top 10 quotes from the staunchly conservative jurist — a mix of rage-filled metaphors and legal punches.”
By: Steve Benen, The Maddow Blog, June 26, 2013
“The Arrogance Of The Third Political Branch”: The Supreme Court Uses Judicial Activism For Conservative Ends
We prefer to think of the Supreme Court as an institution apart from politics and above its struggles. In the wake of this week’s decision gutting the heart of the 1965 Voting Rights Act, its actions must now be viewed through the prism of the conservative movement’s five-decade-long quest for power.
Liberals will still win occasional and sometimes partial victories, as they did Wednesday on same-sex marriage. But on issues directly related to political and economic influence, the court’s conservative majority is operating as a political faction, determined to shape a future in which progressives will find themselves at a disadvantage.
It’s true that the rulings voiding the Defense of Marriage Act and California’s Proposition 8 show how the liberalizing trend on some social issues is hard for even a conservative court to resist.
The Defense of Marriage Act was invalidated because one of the conservatives, Justice Anthony Kennedy, has joined much of the American public in an admirable move toward greater sympathy for gay and lesbian rights.
And the decision on California’s anti-gay marriage law was reached by an ideologically eclectic majority on procedural grounds. Five justices held that the case had been improperly presented because the state of California declined to appeal a lower court’s ruling voiding the law.
This led to a middle-of-the-road outcome. The court declined to declare a national, Constitutional right to same-sex marriage, but did give gay-rights advocates a victory in California. By leaving the issue in the electoral sphere in most states, the court opened the way for further advances toward marriage equality, since public opinion is shifting steadily in its favor, fueled by strong support among younger Americans.
The marriage rulings, however, should not distract from the arrogance of power displayed in the voting rights decision written by Chief Justice John Roberts. His opinion involved little Constitutional analysis. He simply substituted the court’s judgment for Congress’ in deciding which states should be covered under the Section 4 of the Voting Rights Act, which required voting rules in states with a history of discrimination to be pre-cleared by the Justice Department.
The court instructed Congress to rewrite the law, even though these sophisticated conservatives certainly know how difficult this will be in the current political climate.
Whenever conservatives on the court have had the opportunity to tilt the playing field toward their own side, they have done so. And in other recent cases, the court has weakened the capacity of Americans to take on corporate power. The conservative majority seems determined to bring us back to the Gilded Age of the 1890s.
The voting rights decision should be seen as following a pattern set by the rulings in Bush v. Gore in 2000 and Citizens United in 2010.
Bush v. Gore had the effect of installing the conservatives’ choice in the White House and allowed him to influence the court’s subsequent direction with his appointments of Roberts and Justice Samuel Alito.
Citizens United swept aside a tradition going back to the Progressive Era — and to the Founders’ deep concern over political corruption — by vastly increasing the power of corporate and monied interests in the electoral sphere.
Tuesday’s Shelby County v. Holder ruling will make it far more difficult for African-Americans to challenge unfair electoral and districting practices. For many states, it will be a Magna Carta to make voting more difficult if they wish to.
The Constitution, through the 14th and 15th Amendments, gives Congress a strong mandate to offer federal redress against discriminatory and regressive actions by state and local governments. As Justice Ruth Bader Ginsburg noted in her scalding but very precise dissent, “a governing political coalition has an incentive to prevent changes in the existing balance of voting power.”
In less diplomatic language, existing majorities may try to fix election laws to make it far more difficult for their opponents to toss them from power in later elections. Republican legislatures around the country passed a spate of voter suppression laws disguised as efforts to guarantee electoral “integrity” for just this purpose.
Recall that when conservatives did not have a clear court majority, they railed against “judicial activism.” Now that they have the capacity to impose their will, many of the same conservatives defend extreme acts of judicial activism by claiming they involve legitimate interpretations of the true meaning of the Constitution.
It is an inconsistency that tells us all we need to know. This is not an argument about what the Constitution says. It is a battle for power. And, despite scattered liberal triumphs, it is a battle that conservatives are winning.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, June 27, 2013
“John Roberts Gets His Trophy”: Inventing A Previously Unheard Of “New Constitutional Doctrine”
In my focus on the joyful and immediate exploitation of the Supreme Court decision in Shelby County v. Holder by southern Republicans who behaved like they were in the midst of a jail break, I probably gave too little attention to the audacity of the decision itself. Ari Berman of The Nation offered some immediate observations, beginning with the stunning contrast between the Chief Justice’s solicitude for Congress is his dissent against the invalidation of the Defense of Marriage Act with his breezy contempt in Shelby County v. Holder:
In his dissent in the Defense of Marriage Act case today, Justice Scalia wrote: “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation.”
Justice Roberts wrote in his concurrence: “I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of the courts below… I also agree with Justice Scalia that Congress acted constitutionally in passing the Defense of Marriage Act.”
Yet that reasoning didn’t stop Justices Roberts and Scalia from striking down the centerpiece of the Voting Rights Act yesterday, a hugely important civil rights law that has been passed by Congress five times with overwhelming bipartisan approval. Why didn’t the court defer to Congress on the VRA, which has a far more robust Congressional history/mandate than DOMA? And how did Roberts and Scalia reach such contradictory conclusions in the different cases?
But more fundamentally, as 7th Circuit Judge Richard Posner notes in a scathing review of Shelby County v. Holder for Slate, Roberts kind of made up the constitutional foundation for the decision: a previously unheard-of doctrine of the “equal sovereignty of the states.”
Roberts, of course, is rather famous for his specific hostility to the Voting Rights Act, as Adam Serwer pointed out at MoJo when this case was first argued:
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law. “I am sensitive to the controversy which has attached itself to some of the Act’s provisions, in particular those provisions which impose burdens unequally upon different parts of the nation,” Reagan wrote. “But I am sensitive also to the fact that the spirit of the Act marks this nation’s commitment to full equality for all Americans, regardless of race, color, or national origin.” Reagan didn’t go as far as former segregationist and then-Sen. Strom Thurmond (R-S.C.) by opposing the Voting Rights Act in its entirety, but his administration fought efforts to strengthen the law.
Additionally, Roberts has been around the block enough times to know that a legislative “fix” to Section 4 either won’t happen (that’s my bet), or would take long enough that long-stalled voter suppression efforts in the Deep South will find their way into statute books and election procedures. Yes, the Justice Department and civil rights advocates will try to use Section 2 remedies in the absence of preclearance powers, but winning such cases typically requires after-the-fact demonstrations of harm to minority voting influence.
It took a while, and required looking far away from the congressional history of the Voting Rights Act, and inventing a new constitutional doctrine, but John Roberts got his trophy this week. He should have had the sense of decorum to assign the opinion to someone else.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, June 26, 2013
“Supreme Conflicts”: The Peaks And Valleys That Illustrate Our Country’s Worse Divisions
Like most families, my brood is a complex configuration of souls, so I greeted this week’s flurry of Supreme Court decisions with a conflicted heart.
This is true for most anyone who paid attention to the court rulings, I imagine. This latest round reflects parts of our culture we either want to embrace or want to reject. No middle ground here. It’s all peaks and valleys, the perfect graphic to illustrate our country’s divisions these days.
Initially, I was overjoyed to hear that the court had struck down the federal Defense of Marriage Act — a ridiculously named law that did nothing but harm to innocent people and their families for 17 years. Finally, the U.S. government must recognize the legal marriages of same-sex couples, and the earth didn’t tremble, not even a little bit.
Immediately, my mind was flooded with the faces of so many gay men and women who populate our daily lives — good people, crazy loyal and with a patience no one has the right to ask of them.
My mood was quickly tempered by the wake-up jolt of reality. Thirty-nine states still treat their gay citizens like modern-day lepers, passing bills and referenda as redundant as they are hateful. The DOMA decision does nothing to stop states from continuing to discriminate against men and women whose only crime is to be different from the people who fear them for reasons they can’t explain, even to themselves.
A lot of people who oppose marriage equality like to blame God for their bigotry. In my version of heaven, I get to watch them try to explain themselves.
Meanwhile, down here on earth, every time I hear someone talk about how God hates homosexuality — that whole “love the sinner, hate the sin” malarkey — I think of my late mother, whose faith survived countless trials in her 62 years.
“Being a Christian means fixing yourself and helping others,” she used to say, “not the other way around.” That’s a lifetime of work summed up right there.
Nine years ago, my husband and I were married by a minister who still cannot wed her longtime partner simply because they live in Ohio instead of Massachusetts, say, or any other state in New England where same-sex marriage is legal.
To this day, friends and family who attended our wedding want to talk about how moved they were by Pastor Kate’s sermon at our service. To this minute, Pastor Kate cannot legally claim Jackie — beloved to all of us — as her spouse, even as she works for the United Church of Christ every single day.
God’s will, you understand.
Uh-huh.
Also this week, the Supreme Court gutted the Voting Rights Act by ruling that Section 4 of the 1965 law is now unconstitutional. This particular section provides a formula to determine which jurisdictions are subject to federal government clearance before they can change their voting laws.
Historically, the voters targeted by these attempts to reduce their numbers are people of color. Also historically, Republicans are behind these changes, but they pinky-swear that it has nothing to do with how few people of color vote for them.
I’ve lost count of how many times I’ve written about these Republican stunts to suppress the vote. I can’t think of anything more patriotic than helping every eligible voter cast a ballot.
As I age, however, and our children grow up and marry, my patriotic fervor has become to-the-bone personal.
Our 5-year-old grandson bears his mother’s family name, which is Puerto Rican. Our future son-in-law emigrated with his family from El Salvador when he was a child. Republicans are not, shall we say, big fans.
As Columbia University professor Rodolfo O. de la Garza explained in an op-ed in February for The New York Times, America’s Latinos are increasingly the new Republican target for all things sinister.
“The nation does not acknowledge the discrimination Latinos have undergone,” he wrote. “Today, many public officials from states across the nation seem to feel free to treat Latinos as unwelcome newcomers and view Latino voters with suspicion. Republicans are especially leery of Latino voters who are perceived to be noncitizens or, even worse, Democrats.
“Without the law’s threat of federal intervention, I fear that the promise of Latino political equality will stagnate.”
That’s my family he’s talking about.
Fortunately, by 2043, that will be most American families in this country, as the U.S. Census Bureau estimates that that’s the year the white majority will be history.
This white granny’s going to eat a really healthful diet between now and then, because I want to live to see that day.
By: Connie Schultz, The National Memo, June 27, 2013
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