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

The Worst of Times? The Indiana Pope, Fluoride, Daniels, and Wilmington (concluded)

          America has been fueled by conspiracies throughout its history, many concerning race. And its government has always been populated with racists. Recently, many of us learned what we had not been taught before, the racism of Woodrow Wilson. But let’s consider the lesser-known Josephus Daniels. I first learned about him in biographies of Franklin Delano Roosevelt. Daniels was Secretary of the Navy during World War I, and FDR served as his Assistant Secretary of the Navy. The two became friends, and when he became President, Roosevelt appointed Daniels to be ambassador to Mexico, a position he filled from 1933 to 1941. These biographies told me that Daniels for decades at the end of the nineteenth century controlled and edited the Raleigh, North Carolina, News and Observer. He held progressive political positions, supporting public schools and public works, seeking more regulation of trusts and railroads, supporting prohibition and women’s suffrage. However, I don’t remember those books telling me that Daniels was a vehement racist and white supremacist. He maintained that America’s greatest mistake was to give Blacks the vote, and his newspaper published vicious editorials, letters, articles, and cartoons about what was labeled the “horrors of negro rule.” Through his newspaper and personal contacts, he was a promotor of a successful overthrow of a validly elected American government, what has been called the Wilmington Insurrection of 1898. Yes, this country has had precursors to the January 6, 2021, insurrection. Wilmington was one.

          The oppression of the Jim Crow laws had not yet descended upon North Carolina in the 1890s, but economic disparities had. A populist party with an emphasis on the needs of poor whites allied with the biracial Republican party to form Fusionist slates that won statewide offices during that decade. Wilmington, then the largest city in North Carolina, was majority Black, and Blacks held political offices in a biracial government. Moreover, they held economic power by being successful in many professions and by owning butcher shops, restaurants, carpentry businesses, and a newspaper.

          To regain its ascendance, the statewide Democratic party, with Josephus Daniels as one of its leaders, consciously used white supremacist rhetoric, leaning heavily on the unfounded fear of rapes of white women by Blacks. Finding this propaganda insufficient, a NC Democratic official said, “We cannot outnumber the negroes, and so we must outcheat, outcount or outshoot them!” Blacks had to be either frightened away from the polls or be forcibly resisted when they tried to vote. And in the 1898 elections for statewide office, the Democrats were successful—perhaps, many thought, with the aid of stuffed ballot boxes—in removing the integrated Fusionists. Local officials, however, were not part of this election, and the biracial government of Wilmington remained.

          A self-appointed committee of nine white men who were not happy with such a government issued a manifesto telling the Wilmington elected officials to leave and insisting further that if Blacks were not going to be servile to whites in the future, they, too, should depart. Next day, not seeing the demanded exodus, up to a thousand whites exercised what today would be called their Second Amendment rights by arming themselves, not just with rifles, pistols, and shotguns, but also with a gatling gun. Accurate records of the ensuing carnage were not kept, but the estimates of Blacks killed go from 60 up to 300. The rampaging whites installed their own unelected government officials.

          Americans often profess a belief in democracy and elections, but in Wilmington a duly elected government was violently overthrown and replaced without any voting. The slaughter was the coup. Then came the revolution. The white insurrections recognized that without further steps, they might face a biracial government again. After the 1898 election, the white supremacist government gave North Carolina voting officials, who of course would be white, broad discretion in deciding who was eligible to vote. They could ask any “material” question on identity and qualifications. Legislators advocated for a poll tax and literacy test, but others pointed out that these devices could also prevent whites from voting. North Carolina then adopted the “grandfather clause” that exempted those who had voted before 1867 or whose father or grandfather had voted before 1867 from a poll tax or literacy test. In 1868, 80,000 blacks were registered to vote; by 1900, it was 15,000, and “perhaps half of them were able to vote.” By 1906, about 6,100 North Carolina Blacks were registered to vote.

          The Wilmington Insurrection pioneered a formula that would be used throughout the South: deny black citizens the vote, first through terror and then by legislation. And even when the Supreme Court did rule in 1915 that the grandfather clause violated the Fifteenth Amendment, the South found other ways to suppress the Black vote.

          Although I consider myself reasonably well versed in American history, I had not heard of the Wilmington Insurrection until recently. For those who want to learn more, I recommend David Zucchino, Wilmington’s Lie: The Murderous Coup of 1898 and the Rise of White Supremacy (2020). Zucchino goes on to point out that Blacks in North Carolina did not vote after 1898 in significant numbers until after Voting Rights Act of 1965.

          However, NC Republicans in 2012 started collecting data on such things as how many Blacks did not have a driver’s license; how many used early voting hours; how many voted on Sundays. A voter identification law was thwarted by the preclearance provision of Voting Rights Act, but in 2013, the Supreme Court in Shelby County v. Holder gutted the democratically enacted Voting Rights Act, and North Carolina immediately enacted a voter ID law, which is now enshrined in the state constitution. The crazy, conspiratorial actions of today follow the steps taken in 1898 in Wilmington.

Posted on by rjonakait

Originalism? Living Constitutionalism? Who Cares?

Conservatives are ecstatic to have Amy Coney Barrett on the Supreme Court, but have you considered what makes a judge “conservative”? Is it the results they reach or the methods they use to make a decision? Conservative judges promise that they are wedded to a process of constitutional and statutory interpretation and follow that process to the outcome no matter what that outcome is. They maintain that they would never, ever, start from wanting a certain result and work backwards from it seeking reasons for that favored result. No, no. They merely use neutral legal interpretive tools in a consistent manner to reach their decisions about the constitution and the laws. They apply originalism, original public meaning, textualism or some other text-based method to tell us what the constitution and laws allow or forbid. (I have written about methods of legal interpretation several times including on August 22, 2018, Originally it was not Originalism – AJ’s Dad (ajsdad.blog), and on March 24, 2017 Originalism to Textualism – AJ’s Dad (ajsdad.blog).)

          I suspect that most of us, however, don’t give a hoot about the analytic methods used by the Court. Few of us could explain the methodologies. We are concerned with the results. I thought of this a few years ago when the Supreme Court held that firing a gay or transgender employee violated a federal statute that prohibits employment discrimination “because of . . . sex.” The opinion was written by Neil Gorsuch, a conservative favorite. Gorsuch’s analysis relied on what is called textualism, a method championed by Antonin Scalia and other conservative jurists. I am simplifying somewhat, but the method basically says that the statutory words should be applied as written. So, Gorsuch reasoned that if a man is fired for having sex with a man when a woman would not be dismissed for having sex with a man, then the firing is discrimination based on sex. If a woman were fired from a job when a man would not be, it is sexual discrimination. Thus, if a man is fired from a job when a woman would not, that is also sexual discrimination. Gorsuch reasoned that the dismissal of a man because he has sex with another man when a woman would not lose her job for having sex with a man violated the statute.

          A conservative outcry ensued. Some conservatives discussed Gorsuch’s methodology and concluded that he had misapplied textualism, but many others merely decried the outcome without discussing the majority’s analytical method. They felt that a result that furthered the so-called “homosexual agenda” had to be wrong no matter how the decision was reached. They cared about the outcome, not the methodology. But I think that liberals were similar. They cheered the outcome but did not care about the method used to reach it.

          I thought of this again when the recent Supreme Court term ended. The Court rendered two decisions on its last day. Almost immediately I received an email from a right-wing group praising one of the decisions: “Today, the U.S. Supreme Court issued an important decision in Americans for Prosperity v. Bonta, a donor disclosure case with direct implications for religious liberty. In its 6-3 ruling, the Court held that a California law requiring the disclosure of donor names is unconstitutional.” The notice from this religious group continued, “Forcing charities to hand over and make their donor information public is unconstitutional—and it’s also very dangerous. Coupled with the toxic ‘cancel culture’ that’s all around us, government having at its fingertips a compiled list of religious people and/or those who support faith-based groups is a recipe for disaster. The ability to associate with others of like mind is indispensable to freedom. We’re very pleased that the Court recognized the disclosure of names and addresses of citizens simply for donating to a cause is chilling to the freedom of association—including the freedom to associate with, join and donate to the faith-based organizations that are near and dear to us.” (This group was clearly wrong when it thanked me “for generously supporting” it and labeled me a “courageous” supporter. I am on their email list only because I requested a free copy of the Constitution from them, which they generously supplied.)

          The point here is not to discuss whether the Supreme Court decision was correct but rather to emphasize that these words of praise are for the outcome of the case, not for the methodology that led to the result. There was no mention of the conservative buzzwords of originalism, original public meaning, or textualism.

          On the same day, the Supreme Court also decided that changes to Arizona voting laws that made it more difficult for some voters to cast a ballot did not violate the Voting Rights Act even though the Arizona measures had a disproportionate effect on minorities. I have read some good commentaries contending that the conservative majority was not properly reading the text of the statute, but was, in effect, rewriting the law which forbids all changes in voting law with a disparate impact on minorities, while the Court decided that the disparate effects were so small that under the Voting Rights Acts they did not matter  Others, however, without addressing the Court’s methodology, simply placed a Jim Crow label on the decision.

          I felt something similar when I watched a documentary about Ruth Bader Ginsburg a few years ago. The movie presented her inspiring life story and claimed that as a lawyer and judge, she helped move the law in directions that many approve of. But the film did not begin to explain her analytic methods or how her methodology may have been the appropriate way to examine constitutional questions. She was a heroine to many not because of her methodology but because of the results that she reached.

          In short, many on both the right and the left have little interest in the analytic methods the Supreme Court uses. They are concerned only with the outcomes.