Sotomayor says the Supreme Court puts “a thumb on the scale” for Trump - Vox

OTHERWISE: Sotomayor says the Supreme Court puts “a thumb on the scale” for Trump - Vox

by Ian Millhiser

Affirmative Action: The Uniquely American Experiment - The New York Times

Convenient amnesia was an important byproduct of the now dominant view of how to overcome the effects of two hundred years of slavery and one hundred years of legally sanctioned discrimination against African Americans and anyone not "white".  Post World War II people like my family benefited from the "GI Bill" - the comprehensive set of federal benefits that built the suburbs.  Free public colleges, stipends, and government insured VA mortgages for the full purchase price of a newly built single family home.  For whites only due to a Federal Housing Administration requirement of racially harmonious communities.  Patterson aptly labels that as "white affirmative action".  I was a beneficiary of that program, growing up on Long Island in the archetypal post-war 100% white suburb of Levittown, New York.



The United States Supreme Court declared in Brown v. Board of Education (1954) that separate was not equal.  It's directive to dismantle segregation "with all deliberate speed" was met with massive resistance across the south.  Conservative Democrats like Georgia federal appeals judge Griffin Bell opposed "affirmative action", arguing that it was, like prohibition, doomed to fail in the face of cultural resistance.  The Supreme Court. bolstered by the Civil Rights Act of 1964, briefly embraced affirmative action, demanding in Green v,. New Kent County (1968) that the dual school system and its effects be eliminated "root and branch".  School busing and other remedies were endorsed by the Supreme Court in Charlotte, N.C. in 1971, when the majority managed to enlist Nixon's Chief Justice Warren Burger.



But that was the high point.  White cultural resistance in the suburbs of Detroit and the City of Boston were fatal to public school integration plans in the "de facto" "voluntarily segregated" northern schools.  Courts could not demand affirmative action if it crossed local school district lines, said Chief Justice Warren Burger in Milliken v. Bradley the 1974 decision voiding a desegregation order encompassing metropolitan Detroit.  So-called "white flight" was treated as a voluntary  cultural phenomenon (viz. soon to be President Jimmy Carter's Attorney General Griffin Bell) beyond the reach of the courts and of the equal protection principles of the Fourteenth Amendment.



Since then affirmative action has hung on by a thread, abjured as a remedy - except for formal legal segregation - a narrow slot remained.  It was carved by the concurring opinion of former railroad lawyer Lewis Powell in Bakke v. Board of Regents. (1977)  "Diversity", he wrote, was a legitimate objective in higher education.  That thin reed is all that has survived the scrutiny of a Supreme Court which repudiates compensation for centuries of slavery and legal apartheid and "white affirmative action".  Even voluntary efforts to achieve integration were repudiated by Chief Justice Roberts for a plurality in Parents Concerned v. Seattle.  The way to stop discrimination by race is to stop discriminating by race, he wrote in a maxim sure to appear in his obituary along with the balls and strikes metaphor that helped him win confirmation by the Senate.



I'll let Melvin Urofsky and his brilliant reviewer Orlando Patterson take it from here. - GWC

Affirmative Action: The Uniquely American Experiment - The New York Times


THE AFFIRMATIVE ACTION PUZZLE
A Living History From Reconstruction to Today
By Melvin I. Urofsky

reviewed by Orlando Patterson

For two and a half centuries America enslaved its black population, whose labor was a critical source of the country’s capitalist modernization and prosperity. Upon the abolition of legal, interpersonal slavery, the exploitation and degradation of blacks continued in the neoslavery system of Jim Crow, a domestic terrorist regime fully sanctioned by the state and courts of the nation, and including Nazi-like instruments of ritualized human slaughter. Black harms and losses accrued to all whites, both to those directly exploiting them, and indirectly to all enjoying the enhanced prosperity their social exclusion and depressed earnings made possible. When white affirmative action was first developed on a large scale in the New Deal welfare and social programs, and later in the huge state subsidization of suburban housing — a major source of present white wealth — blacks, as the Columbia political scientist Ira Katznelson has shown, were systematically excluded, to the benefit of the millions of whites whose entitlements would have been less, or whose housing slots would have been given to blacks in any fairly administered system. In this unrelenting history of deprivation, not even the comforting cultural productions of black artists were spared: From Thomas “Daddy” Rice in the early 19th century right down to Elvis Presley, everything of value and beauty that blacks created was promptly appropriated, repackaged and sold to white audiences for the exclusive economic benefit and prestige of white performers, who often added to the injury of cultural confiscation the insult of blackface mockery.

It is this inherited pattern of racial injustice, and its persisting inequities, that the American state and corporate system began to tackle, in a sustained manner, in the middle of the last century. The ambitious aim of Melvin I. Urofsky’s “The Affirmative Action Puzzle: A Living History From Reconstruction to Today” is a comprehensive account of the nonwhite version of affirmative action. This is a complex and challenging historical task, given that “no other issue divides Americans more.” But Urofsky, by and large, has executed it well. Following the United States Commission on Civil Rights, he defines affirmative action as a program that provides remedy for the historical and continuing discrimination suffered by certain groups; that seeks to bring about equal opportunity; and that specifies which groups are to be protected. Urofsky explores nearly all aspects of the program — its legal, educational, economic, electoral and gender dimensions, from its untitled beginnings during Reconstruction to the present. The one major missing part of the puzzle in his otherwise thorough account is the military, which is unfortunate since, as the military sociologist Charles Moskos pointed out, “nowhere else in American society has racial integration gone as far or has black achievement been so pronounced.” This deserved a long chapter.

Urofsky claims not to make the case for or against affirmative action but admits to being “conflicted” on the matter. He distinguishes between what he calls soft and hard affirmative action, the first aimed at removing barriers only, the second attempting positive action that results in the observable betterment of the excluded group. He repeatedly says that he favors soft affirmative action. But, to his credit, the “facts on the ground” that he assiduously marshals indicate that merely providing equal opportunity does not work, for reasons eloquently spelled out by President Lyndon Johnson in his celebrated 1965 commencement address at Howard University: “It is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.”


Urofsky reveals that many presidents, administrators and activists, while proclaiming soft affirmative action, have struggled to make it work. Some, like John F. Kennedy, and especially Johnson, as well as Jimmy Carter and Bill Clinton, have publicly voiced their support for colorblind, anti-quota, equal opportunity only, and individualistic rather than group-based approaches, while quietly allowing their administrators to craft pragmatic programs that did just the opposite, to the benefit of the disadvantaged. Some, like Ronald Reagan and the elder George Bush, have openly attempted to abolish the program but failed. Richard Nixon (who else?) made it the centerpiece of arguably the most Machiavellian strategy in modern American political history: His Philadelphia Plan, with its blatant minority business set-asides and insistence on craft unions’ acceptance of blacks, was the most extreme hard version of the program ever undertaken, resulting in major improvements for blacks at all levels of the economy, to the applause of nearly every black leader. But it was also, deliberately, a key element in his notorious Southern strategy, successfully shattering the traditional bond between white working-class union members and the Democratic Party, and paving the way for the Reagan Democrats and the modern Republican ascendancy.

KEEP READING

A Supreme Court for the Rich - The New York Times

Behind the corinthian columns of the United States Supreme Court sit  guardians of civic virtue.  Their devotion to "equal justice under law" is carved in the marble facade. But Adam Cohen devotes his new book to demonstrating that after the brief flowering of such commitment in the Warren Court era retrenchment began in 1969 with the election of Richard Nixon who named the intellectually shallow but reliably conservative Warren Burger as Chief Justice.  It has gotten worse since then.  William Rehnquist was followed in the post by the "balls and strikes" conservatism of his former law clerk John Roberts.

A particularly defining low point was Rodriguez v. San Antonio, the 1973 decision in which the court rejected actions to equitably fund public schools, saying that economic inequality was beyond the reach of the Equal Protection Clause of the post-Civil War 14th Amendment.

Kenji Yoshino lauds Adam Cohen's effort but regrets that he has little to add about how to remedy the situation.  That road will require a major shift in the composition of the federal judiciary, top to bottom.  Better luck may be found in the courts of the so-called Blue States. - gwc

A Supreme Court for the Rich - The New York Times
review by Kenji Yoshino

SUPREME INEQUALITY
The Supreme Court’s Fifty-Year Battle for a More Unjust America
By Adam Cohen
Many progressives hold these truths to be virtually self-evident. The United States Supreme Court has the hallowed role of protecting the most vulnerable in society. At a minimum, it does not engage in judicial activism to burden them further. And only now, when the court has shifted decisively to the right, is it in danger of relinquishing that function.

Adam Cohen’s “Supreme Inequality” shows that these beliefs utterly fail to capture the court’s treatment of the poor. For 50 years, he explains, it has exacerbated economic inequality through its aggressive jurisprudence.

To begin with the most sacred cow, Cohen, a former member of the New York Times editorial board and the author of several books, refutes the idea that the Supreme Court consistently looks out for vulnerable groups in society — what one fabled 1938 case called “discrete and insular minorities.” According to the theory set in motion in that case, the court’s isolation from representative politics is a virtue because a powerful minority at the top of society — the federal judiciary — can protect powerless minorities at the bottom against the prejudice of the masses.

During the Warren court era, which stretched from 1953 to 1969, Cohen suggests that the court did exactly that. It was even poised to recognize the indigent as a constitutionally protected group, like racial minorities, under the Equal Protection Protection Clause.

Yet after it turned to the right in 1969, Cohen argues, the court also turned on the poor. Most of his book builds a brick-by-brick case for this thesis, with chapters on education, campaign finance, democracy, workers, corporations and criminal While at times ponderous, Cohen’s sweeping review is impressive and necessary. If asked for a Supreme Court case on poverty, I suspect most constitutional law scholars would cite the 1973 case of San Antonio School District v. Rodriguez, where the court declined to deem the poor a constitutionally protected class. 

Cohen agrees that Rodriguez had a huge effect. But he makes the point that myriad other decisions, while less widely known, did so as well. Rulings upholding strict voter identification laws and voter purges disproportionately affected the poor. So did limitations on class action lawsuits, because class actions allow plaintiffs suffering relatively small monetary losses to band together. And so did a decision declining to find a three-strikes law to be a “cruel and unusual punishment,” which left in place a 50-year prison sentence for a man who stole videotapes worth $153.54. By taking in the whole picture, Cohen connects seemingly unrelated dots to reveal a troubling pattern.

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Scotus lifts order blocking Trump anti-immigrant rule

The United States Supreme Court has again blocked enforcement of a court order which itself blocked enforcement a Trump rule that requires proof of ability to pay possible medical bills in order to be admitted to the United States.  The four liberals voted to deny the stay and Sonia Sotomayor  dissented.  - gwc

 CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET AL. v. COOK COUNTY, ILLINOIS, ET AL.

ON APPLICATION FOR STAY

[February 21, 2020]

The application for stay presented to JUSTICE KAVANAUGH and by him referred to the Court is granted,and the District Court’s October 14, 2019 order granting apreliminary injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Seventh Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE

KAGAN would deny the application.


JUSTICE SOTOMAYOR, dissenting from the grant of stay.


Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.


.... this application is perhaps even more concerning than past ones. Just weeks ago, this Court granted a stay of a different decision involving the same administrative rule at issue here, after the Government professed urgency

because of the form of relief granted in the prior case—anationwide injunction. The Government now uses that stay—of a nationwide injunction—to insist that it is entitled to one here. But the injunction in this case is limited to one State, Illinois. The Government cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals forthe Seventh Circuit has scheduled oral argument for next week. The Government’s professed harm, therefore, boils down to an inability to enforce its immigration goals, possibly in only the immediate term, in one of 50 States. It is hard to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.... To keep reading click on case caption above.

NDA Waiver - Elizabeth Warren

Mike Bloomberg can easily release the women who have accused him of sexual harassment—and who voluntarily want to speak about their experiences—from their non-disclosure agreements. Take a look at how simple and straightforward it would be: pic.twitter.com/XLncEnSXDF

— Elizabeth Warren (@ewarren) February 21, 2020

Federal Court Finds Conditions in Customs and Border Protection Detention Facilities Unconstitutional - National Immigration Law Center

Federal Court Finds Conditions in Customs and Border Protection Detention Facilities Unconstitutional - National Immigration Law Center

Federal Court Finds Conditions in Customs and Border Protection Detention Facilities Unconstitutional

Court orders Tucson Sector CBP to meet migrants’ basic human needs following 48 hours from book-in time

11th Circuit: Florida cannot condition voting on payment of fines, etc.

OTHERWISE: 11th Circuit: 

In a historic vote Floridians restored voting rights to felons who had "completed" all terms of their sentence.  But after that moment of public enlightenment the Republican Legislature and Governor implemented it by requiring that all fines, etc. have been paid before the million or more released convicts could vote.

In an historic ruling today the U.S. Court of Appeals for the 11th Circuit held in Jones v. Governor of Florida that conditioning vote on payment violates the Equal Protection clause of the 14th Amendment. The Circuit court in its per curiam opinion declared "But whether sounding in equal protection or due process, [the] Griffin[v. Illinois, 351 U.S. 12, 16 (1956)] equality principle is straightforward: the state may not treat criminal defendants more harshly on account of their poverty".


Florida's Amendment 4 provided that a felon’s “voting rights shall be restored upon completion of all terms of sentence including parole or probation.” Following its passage, the Florida legislature passed Senate Bill 7066, which implemented the Amendment and interpreted its language to require payment of all fines, fees and restitution imposed as part of the sentence (collectively, “legal financial obligations” or “LFOs”). The Florida Supreme Court in an Advisory Opinion on January 16, 2020 later agreed with the legislature’s interpretation of the Amendment—during the pendency of this appeal, it held that the plain text of Amendment 4 requires payment of all LFOs as a precondition of re-enfranchisement. 

Life in all Black towns - OK 1920's - Film archive

This rare footage shows what life was like in all-Black towns during the 1920s pic.twitter.com/lXE49tmp8O

— NowThis (@nowthisnews) February 17, 2020

The Yale Law Journal - Forum: Ending Bogus Immigration Emergencies

The Yale Law Journal - Forum: Ending Bogus Immigration Emergencies

by Cecillia D. Wang [Deputy Legal Director - national office - ACLU]

ABSTRACT. In 1944, Justice Jackson dissented in Korematsu, warning that the majority’s decision would “lie[] about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” Seventy-five years later, President Donald Trump has picked up that doctrinal weapon. This Essay sets out three reforms that would prevent future abuses of this weapon by President Trump and his successors: (1) providing for meaningful review of presidential claims of “emergency” and “national interest”; (2) abolishing the punitive and militarized approaches to immigration enforcement enacted in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), and restoring basic principles of due process to the Immigration and Nationality Act; and (3) policies that recognize immigrants and refugees as fellow human beings and not as criminals.

***because of his extreme cruelty and utter disregard for laws and norms, President Trump’s immigration policies have demonstrated more clearly than ever before that when U.S. Presidents are permitted to speak in terms of “emergency” and security “threats” with plenary executive authority, they create deep and long-lasting harms to U.S. communities, due process, and the rule of law. To be clear, every one of President Trump’s immigration-related policies that has been challenged in litigation surpasses existing statutory and constitutional limits on presidential power. But to ensure that neither this President nor any future one can engage in similar abuses, Congress and the courts—and ultimately, we the people—should act.

In this Essay, I trace President Trump’s abusive deployment of “emergency” declarations in his all-out assault on immigrants and refugees and identify the roots of those abuses in longstanding immigration policies.

I. HOLD THE PRESIDENT ACCOUNTABLE: NO BOGUS EMERGENCIES

Supreme Court: Scalia paved the way for Trump’s assault on rule of law - Vox

OTHERWISE: Supreme Court: Scalia paved the way for Trump’s assault on rule of law - Vox: Ian Millhiser attacks the Antonin Scalia/Federalist Society `unitary executive' theory which Attorney General Barr embraces strongly.