Tag Archives: anthony kennedy


Antonin Scalia – the justice who gave us so much unnecessary contempt while handing down dismissive and even capricious decisions – died on Saturday. While many have focused on the astounding kerfuffle that’s developed, in which Senate Republicans apparently are going to avoid confirming a Supreme Court Justice for eleven months, I’m more interested in taking a moment to remember Scalia before his prominence in this “originalist” era begins to gather dust.

Justice Scalia was a man that’s easy to dismiss as a motley of contradictions. He demanded that LGBT people remain a criminalized class in the name of preventing governmental tyranny. He argued that Black people should receive lesser educational opportunities in the name of their own well being. He cheerfully supported the limits to election spending being the size of your donors’ pocketbooks in the name of free speech. Underneath these baffling justifications, so easily torn down – often delightfully by Ruth Bader Ginsburg – is a kind of stunningly consistent judicial logic. His guiding principle seems to have been that the powerful could define how things were and should be, and that he was very glad to hold an appointed life-long position of power.

At times it’s been presented as a bastardization of his own claims to “textualism” that he supported such a deeply anti-democratic view of politics and the world. That of course involves a certain rosey look at the past that Scalia elevated into an all-encompassing justification. The writings he, and for that matter his colleagues on the court, pour over and cite either were written by or derived from the works of slave owners engaged in genocidal campaigns of colonization. Might makes right isn’t that much of an importation really. What set Scalia apart, even from other conservatives on the court, was his dogmatic insistence that the framers were literally never wrong.

Scalia was a product of an often forgotten era – of Reagan’s shining city upon a hill. The 1980s saw the sudden emergence of an almost mythic devotion to a historically murky period, drawing phrases from a 1630 sermon and connecting them to institutions born from a 1787 political convention. Reagan gave a voice to a conservative backlash to what for some was a frightening new world of LGBT liberation and the Civil Rights Movement. It didn’t matter if they were nonsensical appeals to an inconsistent and complex past as long as they served those suddenly on the defensive as a source of comfort. Scalia’s constitutionalism was to some degree little more than an intellectually buttressed version of the same argument from historical authority in the name of authority itself.

The term-less appointment to the Supreme Court let Antonin Scalia sit as a reminder of that time period even while Reagan gave way to Bush, then Clinton, and ultimately Obama. Anthony Kennedy, a centrist alternative put forward after Robert Bork had made it too clear what power for power’s sake looked like, never so fully encapsulated what that Reagan-era moment in history looked like, and has had a judicial career that lived beyond it. Scalia was there alongside him of course, writing more dissents and opinions than almost any other justice in history, but his judicial outlook seemed frozen in time compared to Kennedy’s. At the end of the day, he could only shout at the slow but steady advancement past that Reagan-era reaction or align himself with the positively Macchiavellian rightwing adaptations to that new climate.

Even as people politically opposed to him – again there’s always Ginsberg – mourn him, there is some recognition in liberal circles that what has passed is not just this man but the era that produced him. Far more than former Chief Justice Rehnquist’s passing of his position to current Chief Justice Roberts, Scalia’s death portends a new structural alignment on the court. Any nominee from Obama, even a comparatively centrist one, is going to tip the fragile balance further to the left on most issues.

A Republican blockade against sitting any appointee from the president is the perfect procedural issue to fire up the liberal vote in the 2016 races, and an almost guarantee that another Democratic president would issue their nominations to a more friendly Senate in 2017. Insisting that no one be seated is a complaint with essentially no point, since the anger is that an era is over. Republicans might as well direct those complaints at the demographic shifts in the country, at the transformation of their social wedge issues into liabilities, at the failure of their promised prosperity to manifest for most.

Much like how liberal appointments in the 1930s and 1940s paved the way for the Warren Court of the 1950s and 1960s, the growing liberal bloc on the Supreme Court is a reflection of what has followed Reagan – Clinton’s and Obama’s two-term administrations. The Supreme Court serves as a sort of record of what came before, softly echoing the presidency and to a lesser extent congress. Part of what died on Saturday was the tangible impact of Ronald Reagan, and the political party which still holds debates at his presidential library doesn’t seem to be taking it well.

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How we still talk about Islam without talking about Islam

TW: islamophobia, sexism, heterosexism

In case you missed it, part of the response to the on-going anti-abortion legislative shenanigans in Texas was one protester searching to find a visual vocabulary for how the new policies in Texas impacted her, and dressing herself like this:

(A protester dressed in a burqa while holding the accessories of a beauty contest winner, from here.)

In a word, she donned a mock burqa. Another protester held up a sign conflating these new measures with Islamic sharia law, apparently unaware that sharia law permits abortion in many cases and is typically interpreted as merely disapproving of (not banning) abortion in other cases. That sharia and burqas were the first words that protesters grasped in trying to describe the violence that Texas’ SB5 and subsequent bills enacted on the people of Texas shouldn’t come as much of a surprise – that’s become a common part of political language in the United States.

Less than two weeks previously, former NOM spokesperson Maggie Gallagher discussed the fact that Justice Kennedy found arguments against striking down the Defense of Marriage Act unconvincing as a “fatwa” against supporters of it. A fatwa is a declared opinion from an Islamic scholar, which in systems of sharia law may be legally binding. For Kennedy’s legally relevant decision to support the liberal justices’ opinion to be considered a “fatwa”, you must technically consider him to be as much as moral and religious figure as a political one, and at that an Islamic one.

More or less, this is an established part of how people in the United States conduct their political trash talk – by inflating or explaining the gravity of an act or decision by their opposition in specifically Islamic terms. Often, these are even radically misapplied concepts, but they’re still a part of the vernacular. This is particularly common in discussing actions that are, or a person wants to be considered to be, violent. It’s become positively colloquial to refer to centers of fanatic reverence for any particular idea or person as “Meccas”, showing how these more political uses are built on and reinforce popular ideas of what Islam is like.

Again, it’s always an image of Muslims that frames them as unjust, unreasonable, and even openly hostile. This sort of language, common in discussions that have nothing to actually do with Islam, is rooted in islamophobic ideals. In short, an immovable part of how many people in the US think about themselves and their society is based in opposition to their understanding of who Muslims are and what they believe. It’s become an essential part of our cultural conception of ourselves, as an antithesis to Islam.

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Let’s talk about demographics

Yesterday, the Supreme Court of the United States heard its first arguments in a case that has the potential to overturn the 2003 Grutter decision. That case upheld the legality of affirmative action in education, provided it not be part of a rigid quota system and instead holistically look at the social and academic benefits of a diverse student body. Much of the (inadequate) reporting on the case has focused on the demographics of colleges and universities in Texas (like the one currently being sued), but with minimal or no evaluation of how the demographics of the Supreme Court might impact decisions. Considering the national freak-out over the sudden lack of Protestant justices compared to the current silence over six White justices evaluating the usefulness of affirmative action, there’s something to be said about what identities are valued on the court. It’s worth noting as well, it would be seven White justices considering this case if not for Elena Kagan recusing herself on grounds of working on the case before her appointment. While the absence of Protestants is noticed and criticized, the disproportionately low representation of female justices and justices of color is treated as an irrelevancy, even on a case that clearly and profoundly changes their relationship with the larger society.

Reviewing Grutter is actually quite instructive here. The case, like many in the past decade, was decided by a narrow 5-4 margin, with justices O’Connor, Stevens, Souter, Ginsburg, and Breyer forming the majority opinion. All of the female justices agreed that a holistic evaluation of a student applicant may include components of their identity, most obviously race, but often also their sex and gender – noting that those traits significantly shape an individual’s interaction with the larger world. In short, excluding those factors would produce at best a partial view of the candidate. It’s also worth noting that both of the Jewish justices (Ginsburg and Breyer) sided with the decision which held up a flexible, rather than quota-based affirmative action system. That seems rather straightforward as within living memory at the time, Jewish students had faced restrictive quotas at a variety of institutions. Before I get ahead of myself, it’s undeniable that the identities of Supreme Court justices by no means determine their votes even on issues overtly related to race, gender, or sex. Justices John Stevens and David Souter upheld affirmative action, although neither were Jewish, female, or people of color. Likewise, justice Clarence Thomas filed the most vehement dissent (along with Antonin Scalia), although he is Black.

Still, it seems worth noting that the backbone of support for affirmative action in Grutter derived from justices belonging to marginalized social groups – whether as a result of their sex, gender, or ethnic background. From that perspective, they perhaps more easily saw the need for promotion of diversity and an evaluation of candidates’ entire life experience. A similar dynamic seems to be unfolding in the case currently before the court, as opinions seem to largely break down along sexual and ethnic lines. The only Latin@ justice to ever serve on the court (Sotomayor) and the three current Jewish justices (or in Kagan’s case, her successor) form the block against overturning Grutter and the four White and non-Jewish men sitting on the court seem to be in favor of striking down affirmative action. The deciding vote falls into justice Thomas’s  lap, and he’s made his comparatively unusual opinions on this already known.

Of course, it’s worth noting that if the court actually reflected the American public in terms of gender and race, there would be one fewer White, non-Jewish man on the court. As the 2010 Census reported, 63.7 percent of the US population is made up of “non-Hispanic Whites”, of which 49 percent are male. That works out to about 31% of the US population being “non-Hispanic” White men, meaning that having a third of the court be comprised of them would be the closest representation of the larger population. Working with only three votes from that demographic which is uniquely opposed to these policies, the likelihood of passing this sort of a law would much lower, as it’s dependent on two not just one of the justices from other demographic groups having atypical opinions on the issue.

Of course, applying those standards to the court should be done across the board – meaning that while a proportionately represented court would also have one seat filled by a Black American (which it does), at least one seat filled by a Latin@ American (which it does), and one seat filled by an American of either Asian, Pacific Islander, Native American or “other” ethnic background (which it doesn’t). As all of those instances of representation are for one seat, it’s difficult to speak to the need for intersectional representation – of Latinas, Asian women, Black women, or other women of color of which Sonia Sotomayor is not only the only current example, but the only example in the United States’ entire history. Likewise, if we viewed Jewish justices as ethnically distinct from White justices (rather than as a religious group), they would most easily be included as represented by the additional seat for Asians, Pacific Islanders, Native Americans, and “others”.

Additionally significant would be the change in the sexual composition of the Supreme Court. If we treat Judaism as a religious rather than ethnic category, Ginsburg and Kagan could easily retain their positions as two of the three White women and be joined by another to make three. In effect, a representative Supreme Court would include more women, more people of color, and ideally many justices who belonged to both groups. In such a court, if demographic voting norms on the issue of affirmative action remained in place – majorities of the female justices and justices of color would favor retaining the policies. Such a court would make the 5-4 Grutter decision typical, rather than an unusual case where adequate numbers of White men were convinced of the merit of the program (in Breyer’s instance, perhaps from memories of antisemitic bias that had affected his family) to counteract the demographic misrepresentation on the court.

Instead, the current court has, if we’re probably overly generous to it and count Stephen Breyer as one of the “other” races but Elena Kagan and Ruth Ginsburg as White women, still one more White guy than it would if it were representative. And that’s likely to be the vote that will overturn Grutter.

The current US Supreme Court - justices Roberts, Scalia, Alito, Thomas, Kennedy, Ginsberg, Souter, Sotomayor, and Kagan.
(The current US Supreme Court – from right to left, justices Thomas, Sotomayor, Scalia, Souter, Roberts, Alito, Kennedy, Kagan, and Ginsburg. Originally from here.)

As we’re only in the second day of arguments, all of this is so far only speculation though. Justice Kennedy (one of the five White and male justices on the court) has shown a capacity to vote against expectations in the past, and may surprise us yet, but if he votes according to demographic lines (which seems likely at this point and would reflect his decision on Grutter), he will vote as a part of a historically and currently over-represented demographic on the court.

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