“So Much Stupid”: On Race, Meet Dumb And Dumberer
Oh, my Lord, where to begin?
You already know what this column is about. You know even though we are barely three sentences in. You knew before you saw the headline.
There are days in the opinion business when one story makes itself inevitable and unavoidable, one story sucks up all the air in the room. This is one of those times. One story.
Well … two, actually: the misadventures of Cliven Bundy and Donald Sterling.
Bundy, of course, is the Nevada rancher whose refusal to pay fees to allow his cattle to graze on public land made him a cause célèbre on the political right. They enthusiastically embraced his government-is-the-enemy ideology (Timothy McVeigh would be proud) and militia types flocked to his side, eager for an armed standoff.
Until the press conference where Bundy relieved himself of a few opinions regarding — ahem — “the Negro.”
“They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy?”
And again: Where to begin? Black people “put” their sons in jail? Slavery promoted family life? And beg pardon, but what is free usage of federal land if not a government subsidy? There is so much stupid packed into those words you’d need a chisel to get it all out.
Small wonder that last week the extreme right treated its hero as the rats treated Titanic, shocked — simply shocked! — to learn that a guy who leads an army in refusing to recognize the existence of the federal government might be nuts.
Which brings us to Sterling, owner of the NBA team the Los Angeles Clippers. A leaked audiotape has Sterling telling a woman friend to stop publicizing her relationships with African-American people and bringing them to his games. Sterling also says of Clippers players: “I support them and give them food, and clothes, and cars and houses. Who gives it to them?”
“Give.” Mind you, the man is talking about people who work for him.
So there you have it: frick and frack, the dumb and dumberer of American racial discourse, and predictably, dutifully, media figures, pundits and pols have come together to blow raspberries in their direction, to say all the right things in condemnation of them and their diarrhetic mouths. And yes, they deserve that. Still, there is something facile and dishonest in it, something that reeks of unearned righteousness and even moral cowardice.
The truth is, the idiocy of these men doesn’t mean a whole lot, doesn’t impact much beyond their immediate lives. We hyperventilate about it, yet somehow manage not to be overly concerned as black boys are funneled into prison, brown ones are required to show their papers, voting rights are interdicted, Fourth Amendment rights are abrogated and some guy has his job application round-filed when the hiring woman sees that his name is Malik.
We keep declaring our country cured of its birth defect of racial hatred. Indeed, that’s an article of faith on the political right.
It is only possible to think that so long as you don’t look too closely, so long as you are willing to ignore dirty deeds done largely out of sight and back of mind by collective hands — everyone guilty, so no one is. Then some guys who didn’t get the memo speak a little too stupidly a little too loudly and people condemn them and feel good about themselves for doing so.
But many of us don’t really understand what they purport to condemn. Otherwise, how could there be all this noise about that which doesn’t matter — and silence about that which does?
By: Leonard Pitts, Jr., Columnist, The Miami Herald; The National Memo, April 30, 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
“Bedfellows Of Bigotry”: Bundy Saga Reveals The Risk Of Cozying Up To Extremists
Nevada cattle rancher Cliven Bundy knows how to start a stampede.
After Bundy, who became a right-wing hero for his refusal to acknowledge the authority of the federal government, wondered aloud about whether “Negro” people were “better off as slaves,” conservative figures who had celebrated his cause rushed to distance themselves from him.
Sen. Rand Paul (R-Ky.), who had condemned the federal government’s attempt to enforce court orders against Bundy: “Offensive.”
Sen. Dean Heller (R-Nev.), who had declared Bundy’s followers “patriots”: “Appalling and racist.”
And Sean Hannity, who had led a Fox News campaign that made a hero of Bundy: “Beyond repugnant.”
Bundy boosters are right to be appalled, but they should not be shocked.
The anti-government strain of thought that Bundy advanced has been intertwined with racist and anti-Semitic views over several decades. Not all people who resist the authority of the federal government are motivated by race, of course, and not all racists are anti-government. But there is a long symbiosis between the two.
Among those who rallied to Bundy’s defense in Bunkerville, Nev. — the supporters Heller labeled patriots — was Wiley Drake, an Internet preacher affiliated with the “Oath Keepers” movement. According to reports from the scene, Drake told a crowd of Bundy supporters that they shouldn’t bow to the “half-breed” President Obama.
In general terms, Bundy’s notion of state supremacy — “I don’t recognize the United States government as even existing” — is a variant of states’-rights claims that go back to the Civil War and were revived in the segregationists’ opposition to civil rights laws. Because the federal government has been the protector of minority rights, states’ rights have long been used to justify discrimination.
Specifically, the Southern Poverty Law Center, which tracks anti-government and hate groups, says that Bundy’s sentiments align closely with those of the “Posse Comitatus” movement, founded by William Potter Gale in the 1970s. That movement based its anti-tax position — and its belief in the primacy of county and state authority over the federal government — on a belief that the levers of national power were controlled by Jewish bankers. “Most of the ideas that bolster positions like Cliven’s that the federal government doesn’t exist come from Posse Comitatus ideology,” the SPLC’s Ryan Lenz argues. And that ideology is rooted in bigotry.
The SPLC puts “patriot” groups in a separate category from white supremacists and others organized around hate. The patriots make a constitutional argument to justify antipathy toward the federal government; this can be seen in the noise about secession, nullification, “state sovereignty” and the primacy of the 10th Amendment. But the two categories have some overlap — and that’s why politicians and commentators who try to harness the energy of the “patriot” movement got burned this week. If you flirt with extremists, you’re eventually going to end up with strange bedfellows.
Chris McDaniel, opposing Sen. Thad Cochran in Mississippi’s Republican primary, withdrew from being the keynote speaker at next month’s “Firearm Freedom Day/Tea Party Music Fest” conference when it was reported that the same conference was also touting the participation of a seller of “white pride” merchandise. Likewise, Greg Abbott, the GOP gubernatorial candidate in Texas, campaigned with Ted Nugent and got caught in an uproar over the rock musician labeling Obama a “subhuman mongrel.”
In Florida, Rep. Ted Yoho (R) had to backtrack after telling constituents that he couldn’t say with “100 percent” certainty that the Civil Rights Act is constitutional because “a lot of things that were passed are not constitutional.” Yoho later issued a statement saying the act “is one of the most significant, and constitutional, pieces of legislation in the past 100 years.” Yoho’s flap was reminiscent of Paul’s 2010 questioning of the act’s constitutionality and subsequent climb-down.
Paul, as it happens, was among those undermined by Bundy when the New York Times’s Adam Nagourney reported the rancher’s racist monologue Wednesday night. Paul had sided with Bundy in the standoff, saying “the federal government shouldn’t violate the law, nor should we have 48 federal agencies carrying weapons and having SWAT teams.”
Various others, including Nevada’s Republican governor, Brian Sandoval, had been similarly critical of the federal government. Sen. Ted Cruz (R-Tex.) on Tuesday said the federal government was “using the jackboot of authoritarianism to come against the citizens.”
By Thursday, Cruz’s office was calling Bundy’s racism “completely unacceptable.”
And yet completely unsurprising.
By: Dana Milbank, Opinion Writer, the Washington Post, April 25, 2014
“Ignoring Precedent And Denying Reality”: The Court Stacks The Deck Against Minorities
Affirmative action has opened doors for disadvantaged minorities and made this a fairer, more equal society. The Supreme Court under Chief Justice John Roberts apparently wants no more of that.
This week’s big ruling — upholding a Michigan constitutional amendment that bans public universities from considering race in admissions — claims to leave affirmative action alive, if on life support. But the court’s opinion, ignoring precedent and denying reality, can be read only as an invitation for other states to follow suit.
Justice Sonia Sotomayor’s thundering dissent should be required reading. She sees what the court is doing and isn’t afraid to call out her colleagues on the disingenuous claim that the ruling in Schuette v. Coalition to Defend Affirmative Action is limited in scope. It has implications that go beyond college admissions to other areas, such as voting rights, where majorities seek to trample minority rights.
By “rights,” I mean not affirmative action but the principle, upheld repeatedly by the court, that the political process should be a level playing field. In Michigan, with the high court’s blessing, anyone who wants to advocate for affirmative action is at a disadvantage. Instead of banning the policy outright — which would at least be honest — the court paints it with a bull’s-eye and strips it of defenses.
The case involves the University of Michigan — my alma mater, by the way — which has spent nearly two decades trying to defend taking race into account, as one of many factors, in deciding admissions.
The university is governed by an elected board of regents, some of whose members have campaigned on their views for or against affirmative action. Opponents of what they call “racial preferences” tried but failed to elect enough like-minded regents to end the practice, so they proposed an amendment to the state constitution that says Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” Voters approved the measure in 2006 by a wide margin.
This may sound reasonable, even admirable, but here’s the problem: With the amendment, voters changed the political process in a way that unfairly burdens racial minorities.
There was, after all, an existing process for influencing the university’s admissions policies. You could lobby the regents. You could run ads to pressure the board. You could campaign for board candidates who shared your views. You could run to become a regent yourself.
You can still do any of these things if you want to influence the university’s admissions policies in any other way — if you want, say, more places reserved for “legacy” applicants who are the sons and daughters of alumni. But if you want to influence the board in favor of race-sensitive admissions, you have only one option: an onerous, expensive and almost surely futile attempt to amend the state constitution yet again.
As Sotomayor wrote , “The effect . . . is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had.”
If stacking the deck in this manner is acceptable in university admissions, why not in voting rights? Sotomayor’s dissent recounted the long history of attempts by majorities to change the political process in order to deny racial and ethnic minorities the chance to achieve their goals. The court has recognized a duty to protect the process rights of minorities — until now, apparently.
Once Sotomayor dispensed with the other side’s legal arguments, the court’s first Hispanic justice — she is of Puerto Rican descent — gets personal.
Race matters, she wrote, “for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away.”
She went on, “Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?’ . . . Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’ ”
To young people of color, the Roberts court replied: Maybe you don’t.
By: Eugene Robinson, Opinion Writer, The Washington Post, April 24, 2014
“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
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