“White Racism Won’t Just Die Off”: No Utopia Awaits When Retrograde Attitudes Like Donald Sterling And Cliven Bundy’s Are Gone
Plantation metaphors are generally considered an inelegant way to speak about America’s ongoing problems with racial discrimination. Such metaphors seemingly gloss over the long civil rights movement, which provided the center upon which 20th-century politics pivoted. Talk of plantations make it seem as though nothing has changed.
What, then, should we do when it is revealed that the Nevada rancher encroaching on public lands, who has captured the hearts of the GOP, also not so surprisingly believes that cotton picking and the institution of slavery of which it was a central part served black people well — especially black women — by giving us “something to do”? What should we do when the owner of the L.A. Clippers insists his mixed-race black and Mexican girlfriend not bring black people to his games, even though the majority of players on the team are black?
(After we scratch our heads at the idiocy that would cause the local chapter of the NAACP to give such a man a lifetime achievement award, after clear knowledge of multiple racist incidents in his past, then perhaps we put the choice words of Lil Wayne and Snoop Dogg on repeat.)
What should we do when the Supreme Court chooses to enable and perpetuate our national campaign of dishonesty about the continued and pervasive challenge of racial discrimination by upholding Michigan’s ban on affirmative action?
What should we do when all that shit happens to black people in one damn week?
The staggering political and historical amnesia that allowed six justices to co-sign such a policy caused Justice Sonia Sotomayor to both write and read a 58-page dissent before the court. Sotomayor rightfully suggested that those, like Chief Justice John Roberts, who believe racial discrimination will end by restricting the right of race to be a consideration hold a “sentiment out of touch with reality.” Such a view reminds me of my academic colleagues who put the term “race” in scare quotations, and tell themselves that because race is a social construction – a biological fiction – that they no longer have to think about the real material impact that centuries of race-based discourse have had on constructing a racist world.
“Race matters,” Sotomayor wrote. And “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
The dangerous, backward and wrongheaded thinking of Cliven Bundy and Donald Sterling represent just two of the most obvious iterations of these kinds of “unfortunate effects.” And we are powerless to advocate for ourselves against systemic expressions of such thinking because the Supreme Court has chosen a “see no evil, hear no evil” approach to the problem.
“Chief Justice Roberts, Meet Bundy And Sterling”: An Ugly Corner Of Contemporary American Life, Invisible To The Supreme Court
It’s challenging to keep up with the latest in racist tirades, so let’s attempt a brief review. Last week, Cliven Bundy, a Nevada rancher who became a conservative folk hero for his refusal to pay his debts to the federal government, said that he often wondered if black people fared better as slaves. Then, over the weekend, a tape of what appears to be the voice of Donald Sterling, the owner of the Los Angeles Clippers, surfaced, and it featured Sterling instructing his girlfriend to avoid being photographed with black people and to refrain from bringing African-Americans to the Clippers’ basketball games.
Bundy and Sterling represent an ugly corner of contemporary American life, but it is one that is entirely invisible in recent Supreme Court rulings. In the Roberts Court, there are no Bundys and Sterlings; the real targets of the conservative majority are those who’ve spent their lives fighting the Bundys and Sterlings of the world.
Chief Justice John Roberts has made a famous utterance on the subject of race, and it’s a revealing one. The remark came in a case in which the Justices addressed perhaps the most celebrated precedent in the Court’s history: Brown v. Board of Education. In that decision, in 1954, the Justices ruled that segregated public schools were by their nature unconstitutional. In 2007, the Justices evaluated one of the many attempts that communities have made to address the legacy of legal segregation in schools. Seattle used race as one factor to determine which schools some students attended; the goal of the local initiative was integrated schools. But the Court struck down the Seattle plan as a violation of the Constitution and of Brown. Even to ameliorate segregation, the consideration of race was unconstitutional. In Roberts’ evocative phrase, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In other words, those who were trying to integrate the schools were the ones doing the “discriminating.”
The majority engaged in the same kind of blame-shifting in a recent case, Schuette v. Coalition to Defend Affirmative Action. In response to an earlier Supreme Court decision permitting some forms of affirmative action at the University of Michigan’s law school, voters in the state passed a constitutional amendment barring any use of race in admissions. The question in the Schuette case was whether the Michigan amendment violated the U.S. Constitution. It was a close, difficult case, and the Court concluded, by a vote of six to two, that the answer was no; voters could ban affirmative action if they so chose.
It was as if the Justices in the majority and those in dissent were writing about different countries. Justice Anthony Kennedy’s opinion suggested that the debate over affirmative action should and could take place in a genteel, controversy-free zone. “In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited.” (Yes, it “ought” to be, it just may be that it isn’t.) Kennedy said that the rights guaranteed by the Constitution include the people’s right to “try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.” Apparently, this noble endeavor includes banning affirmative action.
In her dissenting opinion, Justice Sonia Sotomayor wrote about a country where the Bundys and Sterlings still hold considerable sway. Indeed, she went beyond the simple bigotry of the Bundys and Sterlings and found that more subtle wounds of racism still exist in this country. “Race matters,” she wrote, “because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Indeed, Sotomayor threw Roberts’s famous line back at him. She quoted him—“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”—and then wrote, “It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as not sufficient to resolve cases of this nature. While the enduring hope is that race should not matter, the reality is that too often it does. Racial discrimination … is not ancient history.”
The vile words of the rancher and the basketball tycoon showed just how right Sotomayor was. Even if her colleagues insist otherwise, racial discrimination, far from being ancient history, is as fresh and new as the latest alert on your phone.
By: Jeffrey Toobin, The New Yorker, April 29, 2014
“Race And The Supreme Court”: Furthuring The Racial Divide In Our Two Americas
When the United States Supreme Court upheld Michigan’s ban on affirmative action in higher education Tuesday, the justices weren’t just endorsing similar bans in seven other states and inviting future ones. They were, fundamentally, continuing a painful conversation among themselves, and between themselves and the rest of us, on the topic of race in America.
It is a conversation that has been ongoing in its present iteration since the Court’s ideological core shifted to the right almost a decade ago, following the resignation of Justice Sandra Day O’Connor in July 2005. She was replaced by a far more conservative jurist, Justice Samuel Alito, the Court’s center of gravity then shifted from Justice O’Connor to the more conservative Justice Anthony Kennedy, and the ascent of Chief Justice John Roberts, who replaced his friend and mentor Chief Justice William Rehnquist, made the Court’s transition complete.
And it’s a conversation that, judging from the past few related decisions, isn’t bridging the racial divide in this country but rather splintering it further apart. The Court’s ruling in Schuette v. Coalition to Defend would not have happened 10 years ago. We know this because Justice O’Connor herself, in Grutter v. Bollinger, another case out of Michigan, crafted a 5-4 ruling that gave such remedial programs another shaky decade of life. But now they are as good as dead and, as Justice John Paul Stevens said in another context, the Court’s majority didn’t even have the courtesy to give them a proper burial.
Instead, they will be killed over time by what Justice Anthony Kennedy labeled as the procedural necessity of allowing state voters to impose their will upon minorities. We aren’t ruling on the merits of affirmative action, the justice wrote, instead we are merely allowing the voters of Michigan to render their own judgment about affirmative action. And even though that action commands university administrators not to consider race as a factor in admissions, and even though everyone understands that the Michigan measure was passed to preclude what supporters called “racial preferences,” this democratic choice somehow does not offend equal protection principles under the Constitution.
Also unthinkable before the Roberts Court kicked into gear would have been its Court’s decision last June in Shelby County v. Holder to strike down the preclearance provision of the Voting Rights Act. And it would be a mistake today not to connect that ruling to the one in Schuette. They are different sides of the same coin. Shelby County told white politicians in the South that they could now more freely change voting rules to make it harder for minorities to vote. Tuesday’s decision tells white voters that they can move via the ballot box to restrict remedies designed to help minority students and, by extension, communities of color. In each case, the Court sought to somehow extract race out of racial problems.
In Shelby County, the Court’s majority refused to acknowledge the will of the people as expressed through Congress, which repeatedly had renewed Section 4 of the Voting Rights Act with large bipartisan majorities. Yet in Schuette, the Court’s majority rushed to embrace the will of the people of Michigan as expressed in their rejection of affirmative action. Contradiction? Sure. But what these cases have in common is clear: this Court is hostile to the idea that the nation’s racial problems are going to be resolved by policies and programs that treat the races differently. This is what the Chief Justice means when he says, as he did in 2007, that “the way to stop discriminating on the basis of race is to stop discrimination on the basis of race.”
In a perfect world– a post-racial world, you might say—the Chief Justice would be absolutely correct. But the problem with his formula is that he seeks to declare it at a time when there is still in this country widespread discrimination, official and otherwise, based upon race. It is present in our criminal justice systems. It is present still in our election systems. It is present economically and politically even though, as conservatives like the Chief Justice like to point out, far more minorities participate in the political process then did half a century ago. And so the idea that now is the time to stop reflecting this reality in constitutional doctrine is to me a dubious one. “Enough is enough,” the essence of Justice Antonin Scalia’s argument, is neither a solution nor a just way in which to end the experiment in racial justice we’ve experienced in America for the past 50 years. Enough may be enough for white Americans. But it’s not nearly enough for citizens of color.
And this surely is what Justice Sotomayor had in mind when she wrote her dissent in Schuette. What is the role of the federal judiciary if not to protect the rights of minorities against the tyranny of majority rule?
The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.
This is the language that future historians will cite when they cite this cynical decision and this troubling era in America’s racial history. What’s the best evidence that the Supreme Court has it all wrong? Just consider how the two Americas, the two solitudes, reacted to the news of Schuette. The Chief Justice, in his short and defensive concurrence, accused Justice Sotomayor of “doing more harm than good to question the openness and candor of those on either side of the debate.” But to Justice Sotomayor, and to those who share her view, there is no debate. It’s already over. And the side that usually wins in America clearly has won again.
By: Andrew Cohen, Fellow, The Brennan Center For Justice at New York University School of Law; April 23, 2014
“Beyond Corruption”: A Campaign Finance System Warped Beyond What It Would Be Under Any Reasonable Conception Of Democracy
There was a time in our history, thankfully long past now, when bribery was common and money’s slithery movement through the passages of American government was all but invisible, save for the occasional scandal that would burst forth into public consciousness. Today, we know much more about who’s getting what from whom. Members of Congress have to declare their assets, lobbyists have to register and disclose their activities, and contributions are reported and tracked. Whatever you think about the current campaign finance system, it’s much more transparent than it once was.
But if outright bribery is rare, should we say that the system is good enough? It’s a question we have to answer as we move into a new phase of the debate over money in politics. In the wake of last week’s Supreme Court decision in McCutcheon v. F.E.C., many liberals are nervous that the Court’s conservative majority is poised to remove all limits on how much can be donated to candidates and parties. For their part, conservatives seem to be preparing to open a new front in this seemingly endless battle, this time on the disclosure requirements that allow us to track who’s spending money to get their favored candidates elected. But those of us who worry about money’s distorting effects on the process would do well to acknowledge that the combination of more transparency and more money—much, much more money—has created a new reality with dangers that aren’t well described by the traditional conception of “corruption.”
Over the last few decades of campaign finance history, the immediate arguments have changed many times. Sometimes we argued over “soft money” contributions to political parties, sometimes we argued over phony “issue ads,” or 527 organizations and 501(c)(4) organizations, or corporate contributions and aggregate contributions. The specific locus of controversy keeps changing because political money always seems to find its way around whatever obstacles are placed in its path. And the fundamental divide that runs through all these arguments is, just as it has always been, that liberals want to reduce money’s influence over politics while conservatives want to increase it.
Conservatives might protest that that’s not really true; they just care deeply about freedom. But no one buys that for a minute. Their position on the issue is both practical and ideological. They know that if the super-wealthy are allowed to put as much of their money as they want into elections, Republicans will benefit more than Democrats. It’s no wonder that Republican party chair Reince Priebus called the McCutcheon decision a “very big victory for the RNC.” And they genuinely believe that’s as it should be; both the poor person and the rich person have the same right to donate large amounts of money to candidates, and if in practice it’s a right only the rich person can exercise, well that’s the way of the world.
And exercise it they do, with candidates, parties, and independent groups the grateful recipients of that civic-minded largesse growing larger with each passing election. But if your idea of “corruption” is only that which is illegal under bribery laws, that isn’t a problem that demands a solution. In the McCutcheon decision, Justice Roberts was quite clear in his belief that “Any regulation must…target what we have called “quid pro quo” corruption or its appearance…a direct exchange of an official act for money.” Large donations meant to gain the donor access or mere influence over lawmakers, he argued, aren’t enough. In his dissent, Justice Breyer took issue with this rather pinched view, saying “we can and should understand campaign finance laws as resting upon a broader and more significant constitutional rationale than the plurality’s limited definition of ‘corruption’ suggest.”
So maybe what we have here is in part a problem of nomenclature. If you don’t want to call it “corruption,” call it “distortion”—the creation of a system that is warped far beyond what it would be under any reasonable conception of democracy, even if nobody’s breaking any laws.
There is a meaningful difference. Most of the benefits big money looks for these days are spread beyond an individual, sometimes to an entire industry (like banks or oil companies) and sometimes to an even larger group of people and entities who have a common interest, like wealthy people who want to keep taxes on investment income lower than taxes on wage income. If someone like the Koch brothers succeeds in getting their favored candidates elected and their favored policies enacted, many billionaires and corporations will smile in appreciation. They won’t be doing it just for themselves.
There’s an important caveat, which is that money can have a great influence on the arcane details of legislation, where the public neither knows nor particularly cares what’s going on. Lobbyists still give plenty of money to members of Congress, and they do so to ensure the access that allows them to nibble at the nation’s laws for their clients’ benefit. In and of itself, money may not be able to buy a big, visible policy change—a reduction in the top tax rate or the killing of a minimum wage bill, for instance. But it can still buy an obscure provision in the nation’s banking laws, one that could be worth billions to some very interested parties but makes no front-page news.
Even disclosure of all campaign contributions to every type of independent group would probably have just a small impact in reducing the distortion money imposes on the system, in part because citizens can’t be expected to expend the effort to follow its every tendril. When a voter sees an ad casting aspersions on Senator Smiley’s opponent and hears “Americans for an American America is responsible for the content of this advertising,” what can she conclude? Not much, unless she happens to also read an article informing her that AfaAA is a creation of Oswald Greedyhands, whom some consider a heroic job-creator and others consider a nefarious exploiter of working people. Then she’s going to have to think about Oswald’s relationship with Senator Smiley, and learn about the Senator’s legislative record to see what favors he might have done for Greedyhands Industries. It’s a lot to expect of a citizen who has her own life to lead.
So even if the information is out there somewhere, and activists sound the alarms, so long as the money keeps pouring in, the system will bend inexorably toward the interests of those who fund it. A plutocratic system of government of, by, and for the wealthy isn’t necessarily “corrupt,” in the sense of being awash in specific, explicit bribes. But it isn’t particularly democratic, either.
By: Paul Waldman, Contributing Editor, The National Memo, April 7, 2014
“Happy New Year, Losers”: The “Supreme Court Gap” In Unversal Health-Care Coverage
Chief Justice Roberts wishes a Happy New Year to all those losers who will not get health care insurance, thanks to his clever reading of the Constitution. There are 4.8 million of these losers and 2.6 million of them are people of color, black and Hispanic mainly. Not that the Chief Justice and his right-wing colleagues on the Supreme Court would make racist distinctions. No, no, no. They assure us their decision is solely driven by a matter of high comstittional principle—States Rights.
The problem with these people is that they are low-income adults without dependent children—not quite poor enough to qualify for Medicaid nor old enough to qualify for Medicare. President Obama’s original legislation took care of them by expanding Medicaid coverage and putting up the federal money to pay for it. The Roberts decision insisted that state governmednts have a constitutional right to reject this financial aid from Washington. And twenty-five states took him up on the offer.
This odd failure will probably be blamed on Obama but should rightly be called the “Supreme Court gap” in unversal health-care coverage. Because these folks do not not quite earn enough to qualify for Obamacare’s tax credits to help people purchase health insurance. A report from the Kaiser Family Foundation outlined the consequences. “Most of these individuals have very limited coverage options and are likely to remain uninsured,” the foundation explained.
Of course, they could get a job that pays more. Or maybe get married and have children that would qualify them for Medicaid. State governments set many of the rules for Medicaid coverage and some conservatives think fedeal aid saps individual initiative and rewards indolence. It is not entirely a coincidence that many of these rejectionist states are the same states that defied the Supreme Court half a century ago and resisted racial integration and equal rights for minorities. Some of them are the very states that went to war to defend slavery. Republicans are sometimes called a “neo-confederate party.” After the Supreme Court gutted the voting-rights act, the neo-confederates were free to pass restrictive laws designed to shrink minority voting, and so they did.
The Kaiser Foundation doesn’t get into any of that but simply observed, “These continued coverage gaps will likely lead to widening racial and ethnic as well as geographic disparities in coverage and access.”
Don McCanne of Physicians for A National Health Program circulated the Kaiser report with this comment: “What a terrible way to start the first of the year of what is essentially the full implementation of the Affordable Care Act. It seems pretty obvious what our New Year’s resolution should be. Let’s bring health care to everyone through an improved and expanded Medicare for all.”
Democrats ought to call out Republicans on these questions. And citizens generally ought to call out the Roberts court. The Supremes have done quite a lot in the last fifteen years to mess up our already weakened democratic system. They stole the presidential election in 2000. They cut loose big money to swamp elections by destroying lawful restraints. They are trying step-by-step to restore hoary old legalisms that favor capital over labor, corporations over individuals. Shouldn’t we be talking about how to stop them?
By: Wiliam Greider, The Nation, December 31, 2013
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