Tag Archives: antonin scalia

Good news

Trigger warning: indefinite detention, electoral disenfranchisement, racism

The past few weeks have seemed like a bit of a parade of bad news – with Donald Trump’s ascendancy in the Republican primary among other worrisome events. Recently, however, there’s been a few small but significant changes that can give us hope.

Think of the children

After the number of unaccompanied children crossing into the US peaked in 2014, the public’s attention to the issue has steady declined. Even as fewer children have ended up in the overcrowded and dangerous detention facilities scattered across the southwest US, those already here have largely faced a toxic mixture of judicial neglect and increasingly unrealistic orders for them to leave the country.

A new report from Generation Progress touches on the issues that I and others noticed were looming problems just as the crisis began – that very few of these cases have assigned lawyers or even translators. Concerned Senators and Representatives have stepped in with new federal legislation requiring more extensive availability to those services as well as more thorough accountability for the agencies overseeing these detention facilities and court proceedings. Unfortunately, as long as the Senate and House are Republican-controlled, these reforms are unlikely to become law.

The day’s wages

In New York and California a similar tentative step forward, in this case on the minimum wage, has unfolded. In both progressive-leaning states with large labor pools, local activism was sufficient to push for incrementally raising the wage floor. In New York, the main determinant will be regional, with New York City proper seeing its wages move up the most quickly, followed by outlying parts of the urban center, and lastly other parts of the state. To a certain extent, that reflects cost of living, although across the state that will catapult minimum wage workers from $9 an hour into a more manageable economy. In California, the changes will be tailored more to the type of business, with smaller companies given slightly more time to adapt.

(Changes have so far been concentrated in states with minimum wages higher than the federal minimum wage, however. Image modified from here.)

Many commentators have viewed this as a reflection of the populist politics fueling Senator Sanders’ presidential run, but the piecemeal approach in both California and New York is more reflective of the gradual and contextual increases advocated by Secretary Clinton. Far from outside of these policy victories, Clinton took part in the celebratory rally put on by New York Governor Cuomo in her adoptive state.

Who counts the voters

Whether at the state level or federally, these different movements aimed at improving the quality of life have relied on elected leadership. In short, they have needed at least the possibility of voters caring about these issues to motivate political action. The capacity for that to happen as evenly as possible with the population of a district was upheld 8-0 by the Supreme Court on Monday in Evenwel v. Abbott.

This case was launched by the Project for Fair Representation, which previously played a role in an unsuccessful challenge to affirmative action and a fruitful dismantling of the electoral pre-clearance system. The racial dimensions of their work are deliberate and striking, and Evenwel was no exception. The Cato Institute (known for its own relationship with racist, colonialist, and antisemitic ideologies) published a rather flowery amicus curiae on behalf of the plaintiffs in Evenwel where they argued-

Once again this Court finds itself at the intersection of the VRA and the Fourteenth Amendment. The parties here are caught in the inevitable trap of (1) maintaining majority-minority districts under complex, overlapping standards and (2) administering electoral schemes that do little to advance racial equality while doing much to violate voter equality— the idea that each eligible voter’s vote should count equally. In the background of this conflict, there lurks a cacophony of precedent and oft-conflicting court administered standards that have arisen from Section 2 cases. Basic constitutional guarantees of equal protection inherent in the Fourteenth Amendment— such as OPOV—are getting lost in this thicket.

Avoiding racial discrimination under these circumstances is particularly difficult in jurisdictions where “total population” and “citizens of voting age population” (CVAP)—standard metrics for evaluating whether a district violates OPOV—diverge due to varied concentration of non-citizens. As with the tensions amicus Cato has described before, jurisdictions navigating between the VRA’s Scylla and the Constitution’s Charybdis are bound to wreck individual rights—here, voter equality—on judicial shoals.

The reality that redefining electoral districts across the country by either eligible or registered voters would cast aside representation for people ineligible to vote or unregistered (who are largely people of color) is only indirectly considered. It’s framed as an unfortunate cost needed to make each vote cast equally contested by candidates – a pipe dream as turnout can easily inflate a given voter’s power or swamp their decision in a sea of others’. These organizations, all too recently comfortable with the legal realities of Apartheid, were pushing for a milder version of the same multi-tiered political system, where there are people represented and people beneath consideration.

Perhaps most tellingly, the case here sought a structural response to the reality that millions of people are disenfranchised – while being incarcerated (and depending on the state, afterwards as well), for being undocumented or otherwise non-citizens, or from the inaccessibility of the voter registration system. Instead of asking why those people are beyond the pale of electoral participation and what could be changed about that, it treated their exclusion as an accepted given to be worked around.

Luckily the Supreme Court saw things differently, and as the NAACP’s Legal Defense Fund described it:

Upwards of 75 million children—13 million of whom are Black—not yet eligible to vote would have been counted out of the redistricting process had appellants prevailed. Indeed, appellants’ case threatened to take America’s redistricting process back to nefarious periods in our democracy similar to when Black people were counted as 3/5ths of a person for redistricting purposes and expressly excluded from the body politic.

The Court’s decision today vindicates the “one person, one vote” standard, which rightly takes into account Census-derived total population counts when apportioning voting districts. This standard has been applied universally for over 50 years by all 50 states and the thousands of localities within them. Moreover, this clear understanding of “one person, one vote” is already regarded as America’s “de facto national policy” in legislative redistricting, enjoying overwhelming, bipartisan support among state and local governments. Today’s decision reaffirms the guiding logic of this inclusive standard, which fosters access to electoral representation and constituent services for all people, regardless of race, sex, citizenship, economic status, or other characteristics, or whether a person chooses to or is able to vote.

That vision of participatory democracy is the engine that’s helping to drive these modest steps towards a fairer political and economic system. This newly post-Scalia Supreme Court has made clear that they favor that understanding of how this country could organize itself.

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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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The buffoonery of it all

If you’ve been following the US Supreme Court’s descent into nonsense over the past near decade, Antonin Scalia’s cheerful assistance of the defendant attorney Charles Cooper’s very strange argument that procreation is essential to marriage except when it’s not shouldn’t surprise you too much. Here’s the transcript of how Scalia and Cooper talked over Justice Kagan to get out of the logical mess they walked into. It began with Cooper splicing what was really meant by regulating procreation:

Elena Kagan: Mr Cooper, supose a state said that, because we think that the focus of marriage should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
Charles Cooper: No, your honor, it would not be constitutional.
Kagan: Because that’s the same state interest, I would think. You know, over the age of 55, you don’t help us serve the government’s interest in regulating procreation through marriage, if you are… So why is that different?
Cooper: Your honor, even with respect to couples over the age of 55, it is very rare that both couples- both parties to the couple are infertile, and the traditional-
Kagan: No, really because if the couple… I can assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
Cooper: Your honor, society’s… society’s interest in responsible procreation isn’t just with respect to the procreative capacities of the couple itself. Fidelity and monogamy, your honor, advances the interest in responsible procreation by making it more likely that neither party, including the fertile party to that… the martial norm, which imposes the obligations… [Scalia interrupts to joke about infertility exams and how Senator Strom Thurmond fathered a child when 68, with his then 25 year old wife]

Did you catch that? Individual states allegedly have the right to ban marriages between couples which are infertile as a result of their sexual or gendered composition, but not when because of their age.

(Hilarious misunderstanding ensued! From here.)

This obviously fails its own test, in that just as many older straight men who are married to post-menopausal straight women can indeed have children with other women, many queer people who are in an infertile same-sex or same-gender relationship can indeed have children with other potential partners. Expectations of fidelity are a unifying theme, and the perception that those are necessarily exotic concepts to queer families is suggestive of how much straight people believe they have exclusive cultural property over.

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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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