Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

George Will and the Chief Justice On Lochner

This is why silly labels, such as "conservative" and "liberal," get me.  In yesterday's Washington Post, after apparently running out of things to write about, George Will defended the Court's decision in Lochner as "flow[ing] from bedrock American doctrine: The individual possesses inalienable rights — here, liberty of contract — that cannot be legislated away for casual or disreputable reasons." This is not Will's original thinking, of course; as he concedes, he is simply pushing David Bernstein's recent defense of the opinion. 

Will closes with the following:

Long execrated by most law professors, Lochner is the liberals’ least favorite decision because its premises pose a threat to their aspiration, which is to provide an emancipation proclamation for regulatory government. The rehabilitation of Lochner is another step in the disarmament of such thinking.

Could you think of anything sillier than that?

Here's a thought, for starters.  Tell me what you think of it:

I think most cases, most judges, know what it means to interpret the law, and can recognize when they’re going too far into an area of making law, but certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases, you do need to focus again on the question of legitimacy, and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.

You go to a case like the Lochner case. You can read that opinion today and it’s quite clear that they’re not interpreting the law, they’re making the law. The judgment is right there. They say: We don’t think it’s too much for a baker to work whatever it was, 13 hours a day. We think the legislature made a mistake in saying they should regulate this for their health. We don’t think it hurts their health at all. It’s right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said. So, you know, the fact that it’s difficult to draw the line doesn’t relieve a judge of an obligation to draw the line.

This is a statement by none other than Chief Justice Roberts during his confirmation hearing.  He is hardly a liberal, it goes without saying (this was the hearing where the Chief Justice famously invoked the "judge as umpire" metaphor, so maybe we can best understand him as playing a role).

This is why labels can be so unhelpful.  I wonder, in this vein, what Will thinks about the recent decisions over the use of race in admissions, employment, and redistricting.  I wonder, in other words, where his strict constructionism gets him.

I can only imagine.

School Desegregation in Action (cont.)

In reaction to a Washington Post article on the real-world outcome of the Parents Involved decision, Guy writes that the Court's impact "has been negative at best."  I am not sure what he means by this, especially in light of the very passage that he cites.  For example, and as the article explains, Seattle stopped its efforts to implement a policy of classroom diversity; school assignments were changed in many places, including New York City and Beaumont, Texas; and teacher assignment plans were struck down in Memphis and Cincinnati in cases that cited Parents Involved approvingly.  It is hard to conclude from these facts that the impact of the Court's opinion "has been negative at best."  This is an important question.  I wish he'd tell us exactly what he means.

Whichever way one feels about the impact of Parents Involved, his comment does point to one of the most interesting aspects of the Supreme Court's role in American society.  Why in the world would any political actor acquiesce to a mandate from the Court?  

Kennedy's & Roberts' Jurisprudence in Action: School Desegregation

Robert Barnes of the Washington Post has a a wonderful article on the changes wrought by the United States Supreme Court's 2007 decision, Parents Involved Community School District v. Seattle.  Parents Involved is a 5-4 decision by the Court in which Chief Justice Roberts attempted to severely limit, if not eliminate, the ability of public school's to use race to achieve racial equality. The controlling opinion was written by Justice Kennedy, who found the Roberts opinion too extreme.  Roberts's opinion precluded the public schools from using race to achieve racial equality, but Kennedy's opinion provided a limited way forward. 

Robert Barnes returned to Louisville, Kentucky and one of the school districts at issue before the Supreme Court, to determine how they were responding to the Court's decision.  Here is a short excerpt from the article:

The impact of the decision, which directly involved schools here and in Seattle and set rules for school boards across the nation, already has been noteworthy. Seattle has mostly abandoned efforts to force diverse classrooms; it has returned to a system of neighborhood schools augmented by magnet schools and new educational programs scattered throughout the city.

After the ruling, the Bush administration, which supported the challenges to the plans in Seattle and Louisville, warned other local school officials to be wary of assignment plans that relied on race. School attorneys advised their boards that such plans were sure to be challenged. The message was reinforced when conservative legal groups forced changes in school assignments in places as diverse as New York City and Beaumont, Tex.

The decision was cited when courts struck down teacher-assignment plans based on race in Memphis and Cincinnati.

But Louisville, along with a number of other like-minded systems across the country, is betting that using socioeconomic factors, not just race, will help maintain diverse schools and meet the Supreme Court's requirements.

Those who have battled the school system here say it is nothing more than an end run around the court's decision, a misguided experiment by school officials who should be focused on the bigger goal of improving education.

I highly recommend this piece.  It fits with the literature on the the ability of the Supreme Court to affect change. The conservative majority on the Supreme Court clearly attempted to profoundly change the ability of the government to use race to achieve racial equality.  After reading this article, in my view, the Court's impact has been negative, at best. 

Groundhog Day in the Senate

The Elena Kagan nomination hearings began in full this morning.  She is presently engaged in a tedious, boring (even if necessary) game of "gotcha" with Senator Sessions over "don't ask, don't tell" and the Solomon Amendment.  No big surprise there.  What I do find quite remarkable is how Senator Session wields his power as he does, in hearing after hearing, yet the nominees remain respectful and deferential all along.  That alone is a test few of us could probably meet, and is perhaps the very best test our constitutional system could device for a Supreme Court nominee.

As I listen, however, another nomination hearing comes to mind, that of Chief Justice Roberts back in 2005.  For a flavor of what is to come, just compare the prepared statements from Roberts and Kagan. They are so similar that it is downright scary.

This is right out of "Groundhog Day."

Thinking about Activism, Judicial and Otherwise

An article in yesterday's New York Times pitted President Obama and Chief Justice Roberts as "two intellectual gladiators in a great struggle over the role of government in American society."

Without intending to do so, this Article highlights the many problems facing progressives in the world of American politics.

Three things in particular caught my attention. First, the framing of the article itself puts progressives in a situation they cannot win. It is Obama, the President and author of "Obamacare" and everything that is wrong in the world of politics inside the Beltway, against the Chief Justice of the Supreme Court. I wonder who is going to win that battle in the court of public opinion.

This point is directly related to the second. In the article itself, Obama is labeled "an activist president." I think the label is partly right, especially in the wake of the landmark health care legislation. But the label is also partly wrong. Obama may be an activist, but he certainly is not the activist that progressives might prefer. Think in this vein of the health care bill itself and its lack of a public option. Think also of the recent debacle over the failed nomination of my colleague Dawn Johnsen to lead the Office of Legal Counsel, or the direction of Obama's foreign policy. If this is a liberal President, and an activist President at that, I cannot imagine what a moderate president would look like.

The third point follows as well. This is a point about judicial nominations. From the article:

the search for a replacement for the retiring Justice John Paul Stevens is centered on finding a justice who will not just replicate his liberal votes but also bring intellectual heft and powers of persuasion to the court to win the swing vote of Justice Anthony M. Kennedy, according to people close to the search who insisted on anonymity to discuss it. While activists on the left often say they want a liberal Antonin Scalia, the fiery conservative justice, Mr. Obama is looking for a liberal John Roberts, who can forge a five-vote majority rather than write satisfying but ultimately meaningless dissents.

There is so much wrong with this passage that I don't even know where to begin. Obama wants a "liberal" with "intellectual heft" yet also with "powers of persuasion" to seduce meek Justice Kennedy to our side. This is troubling enough; yet more troubling still is the idea that the Chief Justice is a consensus builder, a conservative justice willing and able to forge compromise and bring the needed justices to his side. To be sure, this is what the Chief Justice preached during his confirmation hearings and soon after joining the Court. This is not the Chief Justice we have come to know.

The larger point is this: labels matter, and in the public imagination, Obama is a liberal, and so is Justice Stevens, Breyer, and even Sotomayor. In contrast, Thomas, Scalia and the Chief Justice are conservative justices , "classical judicial jurists" who follow the law and do not try to make anew. This is clearly a hoax, a myth carefully created and nurtured by very smart people who clearly know what's at stake.

Move ahead to the upcoming Supreme Court nomination in order to make sense of all of this. In the last go around, Obama nominated a moderate judge yet conservatives assailed her as a liberal activist and 31 senators voted against her. The next nomination will be along similar lines and senators will criticize it all the same. Right then and there you know that the conservative movement and its construction of reality is winning, by a wide margin. A Republican president nominates Justice Alito and Chief Justice Roberts, and Senate Republicans are able to confirm them. Why is it that Democrats cannot do the same? Why is it that Professor Pam Karlan, as distinguished and credentialed an academic as you will find, is not nominated, but a moderate, even conservative Elena Kagan might be?

Here is everything you need to know: five years ago, two of the four "liberals" on the Court were nominated by Republican presidents. What does that tell you about the Court's ideological drift in the last generation? This reminds me of Justice Stevens' dissent in Parents Concerned, the Seattle school case, where he wrote that "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision." Of course not. This is not the same Supreme Court we are discussing. This is an activist Supreme Court, especially on matters about which the conservatives care deeply. All the while, the general public continues to believe that it is a conservative Court, and the press continue to perpetuate the myth of its conservatism.

As I stated at the onset, this is the problem confronting progressives at the moment. It is quite a challenge.

Are we all activists now?

President George W. Bush reminded us any chance he got that he would only appoint strict constructionists -- whatever that means -- to the federal bench. These would be judges in the mold of Justices Thomas and Scalia. This is a conservative canard, but one with plenty of traction among the public.

An article posted today by Linda Greenhouse reminded me of this old debate. Greenhouse is weighing in on looming constitutional attack on the health care bill and argues that the Supreme Court is unlikely to strike down the recent legislation. I agree with her position wholeheartedly. But her article is far more important for all that it implies about judicial behavior and the many relevant influences on federal judges.

Three passages in particular caught my attention.

The first passage responded directly to the states' arguments against the health care legislation. As she points out, one can find much commentary on this questions around the blogosphere, often made by people who ought to know better. For, as Greenhouse writes, "the only real question is whether any of these arguments will find a warm reception from at least five Supreme Court justices. The answer, almost certainly, is no." This is, without question, the crux of the case. Will the conservative justices have the will to take on the landmark health care legislation? Or in Greenhouses words, "Students of Rehnquist-style federalism will recall that the master himself blinked when his revolution got too close to the core of issues that people really care about."

Make no mistake, to take on the health care legislation would entail judicial activism of the highest order. In the wake of Citizens United and, a decade ago, Bush v. Gore, it would be hard to be surprised by anything the "conservatives" on the Court choose to do anymore.

The second passage is closely connected to the first point:

But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

I cannot help but read this passage and recall the recent Sotomayor hearings and the feigned indignation by Senator Sessions and many conservatives about her "wise Latina" remark. Her point was simple and hardly newsworthy: the background of a nominee will shape how s/he decides cases on the bench. I can hardly think of a more benign statement. This is Linda Greenhouse's point, and I wonder whether the conservatives who attacked Justice Sotomayor will likewise attack Ms. Greenhouse. I seriously doubt it.

Finally, Greenhouse writes that "John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own." I wonder whether this is true, in light of Citizens United. Perhaps this is a bad example, since few people understand the arcana of campaign finance law and the way in which the conservatives went about overturning the Austin case. Greenhouse's sentiment does help explain the recent Namudno case, where the Chief Justice avoided a constitutional confrontation with Congress over the Voting Rights Act. If Greenhouse is correct, it may just be that the Voting Rights Act is on safe constitutional ground after all. I have my doubts. Either way, I am more interested in how this argument casts the Chief Justice, as a judicial strategist more interested in his image and that of the Court than in following the exacting demands of the law.

This is exactly how we ought to view federal judges, and conservative judges should not be an exception. Somehow, however, I have a sinking feeling that it will take much more for the conservative canard to fade from view.

The Chief Justice Strikes Back: Is he Right?

Chief Justice Roberts, apparently, was not happy by the fact that the President used part of his State of the Union address to express his displeasure with the Court's decision in the Citizens United case. I'm not with the Chief on this one.

As my colleague Neil Siegel has argued, the Chief is in the process of changing a fair amount of the Court's jurisprudence. When the Executive Branch strikes back, as the President did at the State of the Union, the Executive Branch is performing its checks and balances function. The hopeful consequence of this clash between the Executive and the Judiciary is that we will have a healthy debate in this country about both the judicial power and the executive power. What role should courts play in a democratic society and what are the limits of executive power? These are both important questions that we must examine continually. If the Chief does not enjoy being called out during the State of the Union address (and I can't imagine why he would enjoy it), he can, as some of his colleagues have, refuse to attend. Moreover, the beauty of our system, the Chief will get his opportunity to pushback against the Executive. The hope is that our republic will be better for it.

Empathy, Racism and Our Highest Court

The Sotomayor nomination has taught me two things. The first is that the American public might in fact be dumb and dumber. The second is that Chief Justice Roberts might well be a racist.


The first insight came to me soon after the nomination became public, and the "wise latina" comment gained currency. Her comment was this: she "hope[d] that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life." If I understand her correctly, these words must mean that judicial experiences affect the way one understands legal issues and arrives at legal conclusions.

If I am right about that, then I wonder: is that it? To say that the depth of one's experiences enrich one's approach to judging should not be controversial. This is true for any judge, whether Thurgood Marshall or Clarence Thomas, Sandra Day O'Connor or Earl Warren.

Does anybody seriously dispute that?

Yet a who's who of conservative punditry assailed her as a racist.

Is anybody out there stupid enough to believe that she is?

The second insight flows directly from the first. Recall here President Obama's stated intentions to appoint judges with "empathy" for the downtrodden. To the aforementioned critics, this is code for appointing activist judges.

To this charge, you can either laugh or cry.

This is actually an easy one. Consider poor, downtrodden Frank Ricci, the firefighter who studied for hours on end, spent a good chunk of money, aced his test, yet was denied a promotion after the city of New Haven threw out the test because of its racial impact.

The Supreme Court sided with Mr. Ricci, in a 5-4 decision delivered by Justice Kennedy and signed by the four remaining conservative justices.

To understand Ricci, it might help to read President Obama's words. Here is what he said:

You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got the heart to recogni-- the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges.

On this argument, it appears that we also need somebody who's got the empathy to recognize what it is like to be a white firefighter in a world where the rules are stacked against you. Or something like that.

In fact, to read the Court's race jurisprudence post-City of Richmond v. Croson is to see a Court empathetic to the travails of white people, innocent victims trampled at the hands of a racist elite. It is hard to read it any other way.

I get it: it is empathy when applied to rulings we disagree with, but strict constructionism and "fidelity to law" when we agree.

Is anyone stupid enough to believe that?

This brings me to the Chief Justice and his record while on the Court. "In every major case since he became the nation’s seventeenth Chief Justice," wrote Jeffrey Toobin, "Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."
To this list, we can add that Roberts has also demonstrated deep antipathy towards the interest of persons of color, on issues as far ranging as voluntary racial integration plans, voting rights, or hiring and promotion.

Which leads me to no other conclusion: if Judge Sotomayor is a racist for believing in the value of judicial diversity, what does his track record make Chief Justice Roberts?

Things that make you scream--The Osborne Case

Yesterday the United States Supreme Court decided District Attorney's Office v. Osborne. William Osborne was convicted of a violent crime in Alaska. Following his conviction he wanted to use a new type of DNA test on the evidence, testing that he claimed was not available at the time of his trial. He is willing to pay for the testing. The test is relatively simple. The test will conclusively prove his guilt or innocence. All the State has to do is turn over the evidence. But the State of Alaska refused to turn over the evidence. Why you ask?

Who knows. Because they can? There is no rationally legitimate reason for refusing to turn over the evidence for DNA testing. Mr. Osborne went to the state courts, where he was unsuccessful. He then went to the federal courts asking them to order the state to give him the evidence so that he can test it. He argued that he has a federal constitutional right to have the evidence so that he can clear his name. He prevailed in the federal district court and in the Court of Appeals for the Ninth Circuit.

In a Kafkaesque opinion by Chief Justice Roberts, joined by the other conservatives, the good Chief concluded that Mr. Osborne was not entitled to the evidence because the "Federal Government and the States have . . . developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established into criminal procedure--usually but not always through legislation." Indeed, noted the Chief, "forty-six States have already enacted statutes dealing specifically with access to DNA evidence." The Chief calls this a "prompt and considered response" by the states. The Chief then told us that the "task" of "harness[ing] DNA's power to prove innocence . . . belongs to the legislature." In plain English: the federal courts do not have to worry about Mr. Osborne because his state will take care of him.

So, pray tell Good Chief, what prompt and considered statute has Alaska passed to address Mr. Osborne's request to test the evidence used against him to convict him? Well . . hm . . . Alaska is not one of the forty-six states, but the "State of Alaska . . . is considering joining them." Say what? But don't worry, "Alaska courts are addressing how to apply existing laws for discovery and postconviction relief to this novel technology." Excuse me?

Let's recap. Osborne cannot get the federal courts to order Alaska to give him the evidence that it used to convict him because providing this right is not the job of the courts but of the legislature. But wait, the state of Alaska has not provided a "prompt and considered response" to addressing requests for post-conviction DNA. Inconvenient fact. However, the State's courts have provided a prompt and considered response. Whew. (By the way, if the state courts can do this, why can't the federal courts?)

Okay, so what is the prompt and considered response of the Alaska state courts? The Alaska Court of Appeals rejected Mr. Osborne's request for the evidence on the ground that his attorney had made a strategic decision in not requesting this type of DNA testing. Yes, but the type of DNA testing that Mr. Osborne is now seeking was not available at the time of his trial. Whoops, another inconvenient fact.

So, what's the Chief's response? In a footnote, he acknowledged that "it is not clear whether the Alaska Court of Appeals was correct that Osborne sought only forms of DNA testing that had been available at trial . . . but it resolved the case on that basis." "It is not clear"? I thought that the Courts of Alaska were capable of providing a considered response . . . . Let's move on.

The Alaska Court of Appeals also concluded that Mr. Osborne was not entitled to the evidence that he sought because "the evidence of [Mr. Osborne's] guilt was too strong and [the DNA test] was not likely to be conclusive." But, I thought that the DNA test Mr. Osborne sought was conclusive as to his guilt or innocence. Yes, it is. Another inconvenient fact.

So, the Alaska Court of Appeals denied Mr. Osborne's request on the basis of two grounds that were clearly erroneous. But the Chief concluded "We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence." Therefore, Mr. Osborne is not entitled to relief under the federal constitution.

Things that make you want to scream.