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“Strange Justice”: A Victory For Right-Wing Ideology, But A Profound And Deep Loss For Racial Justice

Yesterday marked the twentieth anniversary of one of the great wrong turns in American civil-rights history, a grotesque decision that helped those who falsely and nonsensically believe that eliminating federal efforts to establish racial equality will somehow, in and of itself, establish racial equality. The horror of that day still reverberates, the pain of that moment still sears.

On June 12, 1995, the United States Supreme Court, in a ghastly 5-4 decision known as Adarand Constructors v. Pena, gutted the legal infrastructure upholding the country’s affirmative action programs:

In refusing for the first time to uphold a federal affirmative action policy, the court said that such race-based policies enacted by Congress must now survive the same judicial standard that state and local programs have faced since 1989. Known as ‘strict scrutiny,’ it is the toughest judicial standard to meet. To survive, a program must serve a compelling governmental interest and must be narrowly tailored to address identifiable past discrimination.

“Government may treat people differently because of their race only for the most compelling reasons,” Justice Sandra Day O’Connor wrote for the court. She said the Constitution’s guarantee of equal protection of the laws protects “persons, not groups” of people.

“It follows from that principle that all governmental action based on race – a group classification long recognized as . . . irrelevant and therefore prohibited – should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”

O’Connor and her conservative court colleagues effectively struck Rep. John Lewis in the head one more time with this disgusting and destructive ruling, which was, of course, seized upon by right-wing ideologues to block pathways to black progress. The Adarand decision represented the Supreme Court’s shout-out to those who believed that the federal government had done too much to combat past and present-day discrimination.

Perhaps the most repugnant aspect of this decision was the concurring opinion written by Justice Clarence Thomas–an opinion that rhetorically lynched his own black brothers and sisters. Then-TIME Magazine columnist Jack E. White was correct beyond refutation when he observed:

These days Washington seems to be filled with white men who make black people uneasy, like Newt [Gingrich] the slasher, Bill [Clinton] the waffler and Jesse the crank—Helms, that is, not Jackson. But the scariest of all the hobgoblins may well be a fellow African American, Supreme Court Justice Clarence Thomas. In the four years since George Bush chose him to fill the “black seat” vacated by Thurgood Marshall, Thomas has emerged as the high court’s most aggressive advocate of rolling back the gains Marshall fought so hard for. The maddening irony is that Thomas owes his seat to precisely the kind of racial preference he goes to such lengths to excoriate. And as long as he is on the court, no other black need apply: Thomas fills a quota of one.

The most disturbing thing about Thomas is not his conclusions, but his twisted reasoning and bilious rage. In his written opinions, he begins with premises that no self-respecting black would disagree with, then veers off into a neverland of color-blind philosophizing in which all race-based policies, from Jim Crow laws designed to oppress minorities to affirmative-action measures seeking to assist them, are conflated into one morally and legally pernicious whole. He delights in gratuitously tongue-lashing the majority of blacks who disagree with him on almost every civil rights issue. He heaps scorn on federal judges who have used the bench to enforce and expand civil rights, accusing them of a paternalistic belief in black inferiority…

[Thomas] does not hesitate to incorporate dubious theories into his opinions when they suit his purposes. In his brief concurring opinion in the court’s Adarand Constructors v. Pena, in which the court suggested that federal set-aside programs for minority contractors may be unconstitutional, Thomas wrote, “Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are entitled to preferences.” That claim reflects the wisdom of Gingrich country, where, as the House Speaker opined last week, most problems poor black people face are caused by their own “bad habits.”

What Thomas, O’Connor and their right-wing friends will never admit is that bigotry will always be with us; it is hard-wired into our very nature, and thus the federal government will always need to take measures to ensure that bigotry does not strangle the aspirations of Americans of color. To that end, there will never be a day that we can get rid of affirmative action. We will always need goals, timetables, set-asides, preferences and yes, even the dreaded quotas, as they are nothing more than tangible measures by which we seek to reduce racial inequality.

The Adarand decision did great violence to the dream of racial equality. It empowered aggrieved right-wing whites to attack affirmative action programs with vicious vehemence, and put white progressives on the defensive against dubious claims of so-called reverse discrimination. The case was a victory for right-wing ideology, but a profound and deep loss for racial justice.

 

By: D. R. Tucker, Political Animal Blog, The Washington Monthly, June 13, 2015

June 16, 2015 Posted by | Civil Rights, Racial Justice, SCOTUS | , , , , , , , | Leave a comment

“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

April 27, 2014 Posted by | Affirmative Action, Race and Ethnicity, SCOTUS | , , , , , , , , | Leave a comment

“The General Public Will Not Be Heard”: John Roberts Shows He Has No Idea How Money Works In Politics

Shaun McCutcheon is the kind of donor that the Republican Party can’t get enough of. The CEO of Coalmont Electrical Development in McCalla, Alabama, McCutcheon made a small fortune from his work in the mining industry and dedicated much of his life to electing Republicans. The Chairman of the Alabama State Republican Party said that McCutcheon was great at “supporting conservative candidates, getting conservatives elected to office.” Upset that he couldn’t donate more than the federal limit of $46,200 to individual candidates, he teamed up with Senator Mitch McConnell at a CPAC conference in 2012 to launch the latest assault on campaign finance law.

In today’s Supreme Court decision, the Roberts Court, in another 5-4 decision, tore down the aggregate donation restriction. Going forward, donors like McCutcheon can donate up to $3.6 million per cycle, as long as the donations are done in $2,600 blocks to individual candidates.

In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today’s decision builds on Citizens United but the harm to democracy has already been done.

What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics. Roberts struck down the law, framing the attempt to limit the flow of money into politics as an attempt to stifle unpopular speech. Just as the First Amendment protects, “flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.” For the Roberts Court, wealthy donors are under attack as a minority and need the protection of the Supreme Court. Under the Citizens United framework that money is speech, the court in McCutcheon struck the aggregate limit as a violation of the First Amendment.

The Court comes off as remarkably uninformed when it comes to the relationship between wealthy donors and elected officials. Roberts says that legislation cannot seek to limit what he calls the “general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.” Roberts said “spending large sums of money” would not “give rise to such quid pro quo corruption.” The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of “dependence corruption” in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence.

The reality, as Justice Breyer stated from the bench, is that the decisions in Citizens United and McCutcheon “eviscerates our nation’s campaign finance law.” We are left with an inability to regulate the flow of millions into the campaign finance system and a Court that is unwilling to stand up to anything but the most blatant forms of corruption.

Conservatives will celebrate today’s decision as a victory for the First Amendment but the reality is that the right to political speech is under assault from the torrent of money pouring into our elections. This is a point that Justice Breyer captured in his dissent; “Where enough money calls the tune, the general public will not be heard.”

The Supreme Court is now controlling how the Congress can limit the electoral process but, remarkably, not a single Justice has ever held elected office. Since Justice Sandra Day O’Connor, a former State Senator in Arizona, resigned from the Supreme Court in 2005, we have not had a Justice with any experience in elected office. Since she left the Court, Justice O’Connor has openly critiqued the decision in Citizens United, and has argued “we’re in a bit of trouble in this whole area.” While putting elected officials on the Supreme Court has fallen out of fashion, due in part to the extensive voting records they are forced to defend, the Court’s decision in McCutcheon is a reminder that it may be quite valuable to have a Justice who can tell his or her colleagues how a campaign actually works and the impact of money in our electoral system.

If there is any silver lining in this decision, it is that it can help to draw public attention to the outsized role that large-scale donors are playing in our electoral process. The backlash to Citizens United demonstrated that the public does care about this issue and after today’s decision there will be a demand for further action. The decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system; all we have left, as Justice Breyer noted today, is “a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.” We are living in a brave new world of elections, a world where millionaires and billionaires speak loudly and the rest of us do the listening.

 

By: Sam Kleiner, Fellow at Yale Law School’s Information Society Project; Published in The New Republic, April 2, 2014

April 3, 2014 Posted by | Campaign Financing, Democracy, John Roberts | , , , , , , , | Leave a comment

“Bush v Gore”: Maybe The Supreme Court Should Have Said “Let Democracy Take Its Course”

Now she tells us.

Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.

It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.

Looking back, O’Connor said, she isn’t sure the high court should have taken the case.

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”

In talking to the editorial board of the Chicago Tribune, the retired justice added that the case “gave the court a less-than-perfect reputation.”

You don’t say.

O’Connor went on to say Florida election officials “hadn’t done a real good job there” — she seems to have quite an appreciation for understatements — but the high court “probably … added to the problem at the end of the day.”

Had the Supreme Court not intervened, the 2000 recount process in Florida almost certainly would have continued. If all the state’s ballots had been properly counted, then-Vice President Al Gore “would have won, by a very narrow margin,” according to an independent newspaper consortium that examined all of the ballots.

O’Connor, in other words, was one of five justices who directly dictated the outcome of a national presidential election, helping elect the candidate who came in second.

By: Steve Benen, The Maddow Blog, April 29, 2013

April 30, 2013 Posted by | Politics, Supreme Court | , , , , , | Leave a comment

Judicial Elections: You Get The Judges You Pay For

Legal elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.

An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.

In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”

The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing.

For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change.

Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”

More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.

But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.

Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.

In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.

One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.

A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.

Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.

That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.

The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging.

Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.

States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.

By: Erwin Chemerinsky and James J. Sample, The New York Times, April 17, 2011

April 18, 2011 Posted by | Campaign Financing, Constitution, Corporations, Democracy, Elections, Lawmakers, Politics, States, Unions, Voters | , , , , , , , , , , , , , | Leave a comment

   

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