Posted on by rjonakait

Hopes and Expectations—Judicial Edition

In my last post, I indicated that I had hopes for the courts to dampen the Trumpian madness, but my hopes are tempered by the understanding that the courts, including the Supreme Court, have only infrequently been a bulwark for freedom or civil liberties, especially in times of national crises.

Take the 1857 Dred Scott case.  In this critical period of American history, the Supreme Court held that Blacks could not become American citizens. It also held that the Missouri Compromise was unconstitutional because it violated the Fifth Amendment property rights of slave owners. The author of the opinion, Chief Justice Roger Taney, and other justices hoped that the decision would put to rest the country’s slavery problem. Instead, Dred Scott, which has been denounced for its racism, judicial activism, bad history, and awful legal reasoning, helped precipitate the Civil War. Many rank this as the worst decision in Supreme Court history, although its competitors are legion.

Consider “You can’t shout fire in a crowded theater.” This is often seen as a forceful defense of the First Amendment holding that the government can prohibit speech only when the words present a “clear and present danger.” However, in the 1919 case in which Oliver Wendell Holmes wrote the memorable phrase (Schenck v. United States), the Supreme Court unanimously upheld the convictions and jail sentences of Schenck and others for distributing fliers advocating resistance to the World War I draft. In that case free speech took a back seat to wartime fears. Only fifty years later was Schenck overruled.

The Supreme Court in Korematsu v. United States (1944) upheld the internment of Japanese Americans in World War II, another decision that makes the list for most atrocious. Forty years later, Korematsu’s conviction was overturned because evidence had been suppressed. In fact, intelligence agencies had shown no evidence that Japanese Americans were acting as Japanese spies. Reparations were granted internees under the 1988 Civil Liberties Act. However, it took until 2018 before the Supreme Court indicated that Korematsu was no longer good law (Trump v. Hawaii). In 2023, Students for Fair Admissions v. Harvard definitively stated that the wartime decision had been overruled. But that case had other ramifications (see below).

Today’s times bear resemblances to what is often now called the McCarthy era, which actually began before Senator Joe McCarthy came to national prominence. During the initial stages of the destructive anti-communism movement, the Supreme Court had encouraged it by upholding convictions for membership in disfavored groups. Only after McCarthyism had been discredited, did the Supreme Court hold that people could not be imprisoned for beliefs but only for actions.

In short, the Supreme Court has an imperfect record at best for protecting freedoms, especially in the midst of crises. Even when we may think that the Court has protected us — and it has on occasion — it often has done so only after a crisis is over, and the protection matters little.

There are reasons to hope that this time the courts will be protective of the constitution and civil liberties. The current legal cases mostly remain in the lowest federal courts, and those courts seem to be performing well, seemingly attempting to come to grips with the many issues presented by the administration and holding back administrative actions that bend towards authoritarianism. There is hope, too, as cases move up to the Supreme Court. In one case that has already come before the Court, the justices refused to set aside a restraining order as Trump wanted. Justice Amy Coney Barrett and Chief Justice John Roberts joined the majority. Moreover, Roberts spoke out against the cries from Trump and Trumpistas for the impeachment of judges who have dared to cross the president. (Perhaps in spite of life tenure, some judges are intimidated by impeachment threats, and Roberts reassured such nervous Nelsons. But, since a removal from office requires a two-thirds vote in the Senate, which ain’t gonna happen, Roberts’s words can be seen as grandstanding.)

Nevertheless, there are reasons for Trump to see the Supreme Court and the Chief Justice as supportive of his agenda. So, for example, the attacks on diversity, equity and inclusion efforts (DEI) together with the attempt to remove American racism from the national consciousness has its support in the case striking down affirmative action at Harvard. Notably, Chief Justice Roberts wrote the Court’s opinion in Students for Fair Admissions v. Harvard (2023). Without that Supreme Court decision, we would not have the obsessive anti-DEI movement

Moreover, Roberts wrote the presidential immunity decision, which surely emboldens Trump. The Court has suggested that the president can fire anyone in the executive branch, which surely emboldens Trump. The Court has also taken steps and is expected to take more towards gutting the powers of independent agencies, which surely has emboldened Trump. Roberts wrote a decision that eviscerated the Voting Rights Act, which emboldened conservatives to suppress voting. Roberts wrote a disturbing decision about partisan gerrymandering which acknowledged that partisan gerrymandering is really, really bad and a threat to democracy but that we shouldn’t expect the Court to offer a remedy. Just as that gerrymandering is beyond the Court’s authority according Roberts’s opinion, Trump contends that his actions affecting foreign affairs are beyond the Justices’ bailiwick.

I do have hopes that the courts will be a bulwark against the move to authoritarianism. But my hopes are tempered.

Posted on by rjonakait

Marra, the Movies, American History, and Irony

The history of the United States is filled with contradictions and ironies. I am reminded of them often. The latest reminder comes from a novel, Mercury Pictures Presents by Anthony Marra, also author of A Constellation of Vital Phenomena and The Tsar of Love and Techno.

Mercury Pictures, a minor Hollywood film studio, is struggling to survive in the summer 1941. Art Feldman, its head, is making a movie about the propaganda successes of fascism, but censors want to gut the work because the film, still in the days of America First isolationism, is encouraging the country to get involved in the European war. Riots ensue when it is shown on December 6, but, of course, the picture is a hit the next day. Not much subaudition is necessary to grasp the irony–seeing the need to thwart Hitler was deemed un-American before the Pearl Harbor bombs, and Marra reminds us that the epithet “a premature antifascist” would be uttered without apparent irony for decades after the war’s conclusion. (And, of course, the term antifascist has not disappeared as an epithet.)

          Mercury Pictures also presents a sample of the fraught world of Chinese Americans during that time. Henry Lu, a native Los Angeleno, is an actor who can only get movie work playing Japanese villains, and, even though Japan had brutally invaded China in the 1930s, Lu, like others of Chinese descent in America, was in constant danger from “real” Americans who might mistake him for a Japanese national once we entered the war. (I remember a newsreel I saw as a kid that was shot shortly after Pearl Harbor. An Asian man had pinned to his shirt a sign that said, “I am Chinese and a loyal American.” It made me feel sad and reminded me of a different newsreel from Germany where people stood being mocked and abused with placards hanging from their necks reading, “I am a dirty Jew.”)

          Marra does mention the irony of the United States rounding up citizens to put them in places that had more than a whiff of concentration camps, and that many other Americans benefited from the internments by taking the well-tended farms and other lands of the Japanese Americans. But long before the removals of the Japanese Americans, many American states made no distinction between the Chinese and Japanese in forbidding Asian non-citizens from owning land. While many may know that the Supreme Court upheld the internment of Japanese Americans, two decades before Korematsu v. United States, the Supreme Court upheld Washington state’s Alien Land Law, which prohibited Asians from owning property. Only after World War II, perhaps as a result of fighting the Nazis but perhaps also because our Cold War enemy struck propaganda gold in pointing out our racial hypocrisies, did property restrictions start to fade, although I have read that the Washington Alien Land Law was in effect until 1966.

          Mercury Pictures Presents shows America getting into its own propaganda business after it entered the war, but at least at the beginning, the war mongers had their standards and proclaimed that only real combat footage would be used. They quickly learned that the results often seemed to lack verisimilitude and soon began to weave together combat films with reenactments to produce a result that seemed real for the audiences. And, of course, the flag raising at Iwo Jima came to mind.

          Through the character of Maria Lagana, Marra presents another irony of American history. Lagana was born in Rome where her father was a leftist lawyer opposing the emerging fascist government. He is convicted of subversive crimes and sentenced to confino. He is sent to a remote town where he is not imprisoned behind bars but is confined to a small geographic space. He can move around this limited area, but he cannot leave it, much like a dog in a yard with an invisible fence. While he is confined, Maria and her mother escape from Italy and settle in Los Angeles where Maria eventually becomes an important figure in Mercury Pictures. Although by the time America enters the war Maria has spent most of her life in California and is a loyal American, she is classified as an enemy alien. I had not known that one of the consequences of such a designation was that Maria could not travel beyond five miles from her residence. She, who had fled Mussolini, was confined just as her father was for opposing Mussolini.

          While Lagana may have been a fictional character, she represents a major irony of the Hollywood studios of the era. While the films they produced helped define America and Americanism to America and the world, many of the major studio figures were refugees from the tyrannies of Europe who would become “enemy aliens” when we entered the war. One of them in the novel was a Berlin-born woman who built miniatures for the movies. She is sent to the Utah desert to help with a project I had not heard of before but was real. [While often I do not know whether to trust the history depicted in a work of historical fiction, I trust Marra in Mercury Pictures Presents. Besides the usual acknowledgements, Marra also presents a bibliography of three or four dozen history books, as well as other material, he used to form his narrative.] On the Dugway Proving Grounds, the Army built a simulation of a Berlin neighborhood as accurately as it could in order to test out the best way to start a firestorm in the German city. According to us, we were fighting a moral war against evil, but we sometimes used morally questionable methods to fight the war, and that included firebombing civilians. The proposed bombing of Berlin had additional ironies; the plan was to decimate a working-class neighborhood because the buildings were closer together there than in middle- and upper-class sections of the city even though the targeted neighborhood had been one of leftists who had opposed the rise of Hitler. I don’t think we ever did firebomb the Prussian capital, but we did firebomb Dresden, as Kurt Vonnegut described in Slaughterhouse Five. And before the atomic bombs, we had firebombed Tokyo, with its highly flammable structures, killing an estimated 100,000 civilians. (Malcom Gladwell in The Bomber Mafia presents some of the World War II debates about the morality of different bombing strategies.)

(continued November 30)