“On His Extremist Island”: Clarence Thomas Would Turn Back The Clock
In yesterday’s Supreme Court ruling on official government prayers at town-council meetings, Justice Anthony Kennedy wrote the 5-4 decision arguing that such practices are permissible under the First Amendment. There was a separate concurring opinion from Justices Samuel Alito and Antonin Scalia, but then Justice Clarence Thomas decided to go further than any of his colleagues.
As Dahlia Lithwick noted, Thomas made the case “that in his view the First Amendment religion clauses don’t apply to the states in the first place.”
Wait, really? Yep, that’s what Thomas actually believes.
…Thomas couldn’t get Scalia’s signature for another part of his dissenting opinion, in which Thomas – not for the first time – disputes the notion that the 1st Amendment’s ban on the “establishment” of religion even applies to state and local governments.
Here’s the deal: the first 16 words of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Nearly a century ago, under something called the incorporation doctrine, courts ruled that most of the Bill of Rights applies to state and local government, too.
In other words, under the literal text of the Constitution, Congress can’t pass laws interfering in religion, abridging the freedom of speech, or undermining a free press, but once the Bill of Rights was applied more broadly, neither can states or municipalities.
Thomas, however, wants to turn back the clock. If policymakers in your state chose today to establish Christianity as the official state religion, Clarence Thomas believes that would be entirely permissible under the First Amendment. So long as Congress didn’t pass the law, he says, it’s kosher.
Even Scalia, hardly a moderate, seems to think that’s nutty, but Thomas just doesn’t care.
As Michael McGough’s report added, “Thomas has argued, the Establishment Clause ‘is best understood as a federalism provision – it protects state establishments from federal interference but does not protect any individual right.’”
This is clearly quite radical, even by contemporary standards, though Thomas isn’t entirely alone on his extremist island – it was just last year when North Carolina Republicans considered legislation that read, “The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.”
That bill ultimately failed, as did Thomas’ effort to find justices who would endorse his perspective, but as conservative politics moves sharply to the right, it’ll be worth watching to see just how many Republican officials end up embracing this argument.
By: Steve Benen, The Maddow Blog, May 6, 2014
“Neutral, Generic Blessings?”: Get Prayer Out Of The Churches And Back In The Public Square Where It Belongs!
Maybe it’s something I retained from my early training as a Southern Baptist, way back when members of that denomination, believe it or not, hewed closely to Roger Williams’ doctrine of strict separation of church and state. But every time increasingly conservative courts make fresh accommodations for state-sanctioned religious expressions, as SCOTUS did yesterday in Town of Greece v. Galloway, I have an adverse reaction from a religious point of view.
As Dahlia Lithwick points out at Slate, the majority opinion in the 5-4 decision goes well out of its way to emphasize the banality of prayers at town meetings and other public events:
There will be a good deal of bitterness in the coming days among members of religious minorities and majorities who believe that the Town of Greece decision is just or unjust depending largely on how they feel about sectarian Christian prayers. But stepping back from the specific arguments of the plurality and dissent, it’s fascinating to see how Kennedy and Justice Samuel Alito relentlessly characterize religion as an essentially peaceful, civilizing, lofty influence that seems to have more to do with social politeness than religious zeal. Kennedy’s majority opinion contains the complete text of four prayers, presumably to calm and unify his stressed-out reader, and he writes lovingly of prayer that is “solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing.” He seems unaware that for every solemn and respectful prayer, America offers up dozens of fiery, judgmental, even violent ones.
And yes, Americans also offer up soul-wrenching, spiritually deep, and challenging prayers, too. Cheapening prayer into a “neutral,” generic blessing of secular proceedings offends me as much as sanctioning sectarian expressions because most people in a given community more or less belong to a particular faith, which appears to have been the case in Greece, New York.
Had I been on the Court, I would have probably filed a dissenting opinion urging the reversal of Marsh v. Chambers, the 1983 precedent which basically authorized generic public prayers to a generic God, instead of expanding Marsh to include “non-coercive” sectarian prayers, as the majority did, or drawing the line at prayers so empty as to be deemed non-sectarian, as the dissenters did.
Corporate prayer is meaningless if it does not invoke the beliefs of the community for which it is offered. That is why it belongs in gatherings of believers (and those who for whatever reason–say attendance at a wedding or funeral–are voluntarily participating in a religious event). Yes, throughout the centuries there have been many religious believers who reject the very idea of a “secular” realm, but that is unmistakably alien to American traditions, much as latter-day “constitutional conservatives” try to demonstrate otherwise in their audacious efforts to turn Jefferson into a theocrat.
So let’s don’t assume the only Americans who object to the kind of public prayers sanctioned by Town of Greece–or for that matter, Marsh–are members of religious minorities or unbelievers, justified as they are in the exclusion they feel in public events blessed according to rites they do not accept. Some wag years ago mock-thundered that it was “time to get prayer out of the churches and back in the schools where they belong.” That’s exactly how I react to the the whole “religious expression in the public square” movement. It’s offensive to those who pray as much as to those who don’t.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, May 6, 2014
“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.
“End College Legacy Preferences”: The Deck Is Stacked At Every Level In Favor Of The Rich
Someone reading about the Supreme Court’s decision upholding Michigan’s ban on affirmative action — and by extension similar measures passed by voters in California, Texas, Florida and Washington — might develop the misimpression that affirmative action is on the wane. In fact, it’s alive and well: Public and private colleges routinely give preferential treatment to children of alumni.
If you have kids, or plan on having them someday, you know that acceptance rates at elite colleges are at historic lows. Stanford led the stingy pack, admitting but 5 percent of applicants, with Harvard and Yale trailing close behind at 5.9 percent and 6.3 percent respectively.
For “legacies,” the picture isn’t nearly so bleak. Reviewing admission data from 30 top colleges in the Economics of Education Review, the researcher Michael Hurwitz concluded that children of alumni had a 45 percent greater chance of admission. A Princeton team found the advantage to be worth the equivalent of 160 additional points on an applicant’s SAT, nearly as much as being a star athlete or African-American or Hispanic.
At Harvard, my alma mater, the legacy acceptance rate is 30 percent, which is not an unusual number at elite colleges. That’s roughly five times the overall rate.
The disparity is so great it makes the most sense to conceptualize college applications to elite colleges as two separate competitions: one for children whose parents are legacies, the other for children whose parents aren’t.
Admissions officers will hasten to tell you that in a meritocracy many legacies would get in anyway. Let’s pause to consider the usefulness of the term “meritocracy” in a system where the deck is stacked at every level in favor of rich, white students before conceding the premise. It’s surely true that many children of alumni are brilliant, hard-working and deserving of a seat at a top college. That’s quite different from saying the system is fair. In 2003, Harvard’s admissions dean said that the SAT scores of legacy admits were “just two points below the school’s overall average.” These are students who have enjoyed a lifetime of advantage. We’d expect them to have outperformed nonlegacies, at least by a bit, and yet they’ve done slightly worse.
Reasonable minds can differ on the morality and wisdom of race-based affirmative action. Where I teach, at John Jay College of Criminal Justice, which is about as egalitarian as institutions come, I’ve seen firsthand what the data show: College is a ticket out of poverty, and exposing young men and women to diverse classmates and role models raises the ceiling on what they believe is possible for themselves. That said, I acknowledge the desire for a colorblind, meritocratic society as an honorable position. But how can anyone defend making an exception for children of alumni?
One needn’t have a dog in this hunt to be troubled by legacy. It’s disastrous public policy. Because of legacy admissions, elite colleges look almost nothing like America. Consider these facts: To be a 1 percenter, a family needs an annual income of approximately $390,000. When the Harvard Crimson surveyed this year’s freshman class, 14 percent of respondents reported annual family income above $500,000. Another 15 percent came from families making more than $250,000 per year. Only 20 percent reported incomes less than $65,000. This is the amount below which Harvard will allow a student to go free of charge. It’s also just above the national median family income. So, at least as many Harvard students come from families in the top 1 percent as the bottom 50 percent. Of course this says nothing of middle-class families, for whom private college is now essentially unaffordable.
These facts will trouble any parent of modest means, but it’s time to recognize this as an American problem. Together with environmental destruction, social inequality is the defining failure of our generation. The richest .01 percent of American families possess 11.1 percent of the national wealth, but 22 percent of American children live in poverty.
There are only two ways this gets better. One is a huge reformation of the tax structure. The other is improved access to higher education. Few investments yield a greater return than a college degree. Education has great potential to combat inequality, but progress simply isn’t possible if legacy persists.
To justify this practice there would need to be, in lawyer language, a compelling justification. There is none. Elite colleges defend legacy as necessary to fund-raising. It isn’t. Neither Oxford nor Cambridge nor M.I.T. considers legacy. Their prestige is intact, they attract great students, and they have ample endowments. Moreover, technology has transformed fund-raising. Presidential candidates raise money through grass-roots campaigns; colleges can, too.
Legacy evolved largely as a doctrine to legitimize the exclusion of Jews from elite schools. It endures today as a mechanism for reinforcing inequality, with particularly harsh consequences for Asians, and fundamentally contradicts the rhetoric of access in which elite colleges routinely engage.
Harvard, Yale, Stanford, Princeton and Columbia collectively have endowments of about $100 billion. They have the means to end this abhorrent practice with a stroke of a pen and the financial resources to endure whatever uncertainty ensues. Just a hunch, but I think the economically diverse students admitted to these great colleges would be successful and generous to their alma maters, not in the hope of securing their child a place in a class, but out of genuine appreciation of a legacy of equal access.
By: Evan J. Mandery, Professor at John Jay College of Criminal Justice; Op-Ed Contributor, The New york Times, April 24, 2014
“Time To Make A Choice”: Huge Wealth Gap Caused Backlash Before And May Again
A majority of the Supreme Court decided last week that the First Amendment protects the right of individuals to pour as much as $3.6 million into a political party or $800,000 into a political campaign.
The court said such spending doesn’t corrupt democracy. That’s utter baloney, as anyone who has the faintest familiarity with contemporary American politics well knows.
The McCutcheon vs. FEC decision would be less troubling were the distribution of income and wealth in America more equal. But over the last few decades it has become extraordinarily concentrated. The richest 400 Americans now possess more wealth than the bottom half of the U.S. population put together.
A few billionaires are now deciding on whom to place their bets for the next presidential election. Before McCutcheon vs. FEC, they had to resort to bulky super PACs and so-called “social welfare” organizations. Now they can dole out their money directly.
McCutcheon vs. FEC coincides with the publication in English of an important book by French economist Thomas Piketty, “Capital in the 21st Century.” Piketty sees the United States and most of the rest of the world returning to the vast inequalities of wealth that were taken for granted as late as the end of the 1800s.
“It is almost inevitable that inherited wealth will dominate wealth amassed from a lifetime’s labor by a wide margin, and the concentration of capital will attain extremely high levels,” Piketty writes. Those levels are potentially incompatible with the meritocratic values and principles fundamental to modern democratic societies.
Piketty shows that for several centuries before World War I, the financial returns to the owners of capital exceeded the rate of growth of modern economies, creating a widening divergence between wealth and incomes. That divergence meant widening inequality between the owners of those assets and the people who worked for a living.
The gap was reversed in the 20th century by two brutal wars and a Great Depression that wiped out the dynastic fortunes of Europe and the accumulated wealth of America’s Gilded Age. But in recent decades, slower growth and higher returns to the owners of capital have allowed the older pattern to reassert itself.
In this sense, McCutcheon vs. FEC marks another step back toward dynastic rule, enabling the owners of vast wealth to compound their holdings through politics.
Nonetheless, I think Piketty’s analysis is way too pessimistic. He disregards the political upheavals and reforms that such wealth concentrations have periodically fueled – such as America’s populist revolts of the 1890s followed by the progressive era before World War I, and the German socialist movement in the 1870s followed by Otto von Bismarck‘s creation of the world’s first welfare state.
Even at this particularly dark hour for democratic capitalism, we see evidence of a resurgent populism and progressivism in the United States. The so-called Tea Party movement is, in a sense, a populist revolt against large corporations, Wall Street and the Republican Party establishment. And the Occupy movement, although apparently short-lived, has found new voice in the recent electoral victories of New York Mayor Bill de Blasio and Massachusetts Sen. Elizabeth Warren.
Democratic capitalism might have within it a balance wheel that Piketty too readily discounts: a public that, once it catches on to what’s happening, refuses to cede control to concentrated economic power.
In turn-of-the-century America, when the lackeys of robber barons literally placed sacks of cash on the desks of pliant legislators, the great jurist Louis Brandeis warned that the nation faced a choice. “We may have democracy, or we may have wealth concentrated in the hands of a few,” he said, “but we can’t have both.”
Soon thereafter, America made the choice. After the turn of the century, public outrage gave birth to the nation’s first campaign finance laws, along with the first progressive income tax. The trusts were broken up and regulations imposed to bar impure food and drugs. Several states enacted America’s first labor protections, including the 40-hour workweek.
In the short term, McCutcheon vs. FEC might make it easier for today’s robber barons to take over American politics. But by inviting them to corrupt our democracy so brazenly, it also might fuel a popular backlash leading to a new era of reform. It has happened before.
By: Robert Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley; San Francisco Chronicle, April 11, 2014
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