Mostly Monday Reads: Supreme Horror and Bummer Court takes aim at Precedent Again

Study after Velázquez’s Portrait of Pope Innocent – Francis Bacon, 1953

Happy Halloween, Sky Dancers!

The Horror Show continues at the Supreme Court as Justice Alito, once again, shows what a Supreme Asshole he can be. We’re also establishing that Roberts doesn’t care if something exists or not, and Clarence Thomas is still the dumbest Justice ever appointed to the High Court.  The Supreme Court is revisiting affirmative action, and all the white excuses aren’t relegated to those representing the tropes and misunderstandings about the effort to achieve more diverse universities. This isn’t unbiased questioning at all.

You may remember the Harvard case that was decided in 1978 with the majority opinion written by Justice Lewis Powell.  The precedent has been upheld, albeit narrowly, even with Republicans on the court.  Powell likened the use of race to broaden the diversity of the student body was similar to using other traits–like talent or ability in sports or the arts–could also come under consideration.  Folks covering the hearings are discovering just how biased the religious reactionaries on the court can be.

This is from NPR: “Can race play a role in college admissions? The Supreme Court hears the arguments.”

In a series of cases since then, the court has more or less stuck to that principle, adding that each applicant must be evaluated individually, in a holistic way.

But today Harvard’s admission system, cited as a model by Powell, is itself under the judicial microscope, along with the system at the University of North Carolina. UNC, which until the 1950s refused to accept any black applicants, is now widely rated as one of the top three state colleges in the South, though like many other top universities, it struggles to have a genuinely diverse student population. Just 8% of the undergraduate student population is African American in a state that is 21% Black.

The two cases overlap. Because UNC is a state school, the question is whether its affirmative-action program violates the 14th Amendment’s guarantee to equal protection of the law. And even though Harvard is a private institution, it still is covered by federal anti-discrimination laws because it accepts federal money for a wide variety of programs.

Ultimately, at the heart of both cases is the same principle: what constitutes racial discrimination?

On one side is Students for Fair Admissions, an organization founded by legal activist Edward Blum, who for decades has fought what he sees as racial preferences in school admissions and in other spheres as well.

“What is happening on college campuses today is that applicants are treated differently because of their race and ethnicity,” he says. “Some are given a thumbs up. Some are given a thumbs down.”

On the other side, Harvard and UNC contend that in addition to academic excellence, they aim for a student body that is demographically diverse, and that in evaluating the strengths of each candidate, an admissions committee “need not ignore a candidate’s race any more than it does a candidate’s home state, national origin, family background, or special achievements.”

This holistic approach to college admissions is used by a huge variety of colleges, large and small, including the U.S. military academies. Among the many academic institutions that have filed briefs supporting affirmative action are 57 Catholic colleges and universities, including Notre Dame, Georgetown, and Holy Cross. And there are more briefs filed by 68 of the largest corporations in the country, and a brief filed by a long list of retired three- and four-star generals and admirals attesting to the need for racial diversity in the upper echelons of the military. They say that the lack of racial diversity in the officer corps during the Vietnam War led to enormous tensions, and even violence between the largely white officer corps and the largely black and Hispanic enlisted men, sometimes compromising the war effort.

Ellie Mystal is tweeting the hearings live and not pulling any punches.

The Library, Félicien Rops, circa 1878-188

That’s typical of Alito, who runs with the crowd that invents abortion procedures that don’t exist either. Whatever his crazy ass patriarchal cult insists is, the reality is the only thing that matters.  He should try to stick to that minimally.  Ryan Lizza and Eugene Danials believe that the affirmative action precedent is dead on arrival to this court.  This is from Politico Playbook: “POLITICO Playbook: The next big precedent SCOTUS is set to overturn.”

  Their argument is based on Robert’s previous opinions when he could not get them through prior cases.

FIRST ROE, NOW BAKKE — Another landmark Supreme Court decision from the 1970s is likely to fall.

This morning, SCOTUS will hear oral arguments in two cases challenging the use of race in college admissions at Harvard and the University of North Carolina.

There is little mystery about the outcome. 

Previous attempts to overturn the use of affirmative action by colleges have failed. In 2003, Justice SANDRA DAY O’CONNOR, nominated by RONALD REAGAN, provided the decisive vote in Grutter v. Bollinger. In 2016, Justice ANTHONY KENNEDY, another Reagan nominee, did the same in Fisher v. University of Texas. Those cases narrowed the use of race in admissions to one permissible goal: diversity.

But the court has changed radically since 2016, and the six conservative justices have a history of hostility to Regents of the University of California v. Bakke, the 1978 opinion that first blessed college affirmative action programs. As the court made clear in Dobbs, if five justices believe that an old case is “egregiously wrong,” 40-plus years of precedent don’t matter.

And Chief Justice JOHN ROBERTS is unlikely to play the role of bridge-builder as he did in the ACA-saving NFIB v. Sebelius, when he was successful, and in Dobbs, when he wasn’t. On rolling back affirmative action, Roberts is the chief hawk on the court.

His two most oft-quoted lines on the issue come from the earliest days of his SCOTUS tenure. “It is a sordid business, this divvying us up by race,” Roberts wrote in a 2006 gerrymandering case. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” he wrote in a 2007 school desegregration case.

It was in that latter opinion that Roberts best articulated the conservative view of Brown v. Board of Education, which is at the heart of the cases that will be heard today. Brown, he insisted, quoting one of the plaintiff’s lawyers at oral arguments in 1952, concluded that “no state has any authority under the equal protection clause of the 14th Amendment to use race as a factor in affording educational opportunities among its citizens.”

The Ghost of a Flea, c. 1819–20, William Blake

You may recall that Judge Jackson Brown has recused herself from the Harvard Case but can rule on the other. One thing that is interesting to note is this take from Theodoric Meyer and Toby Raji. This is from the Washington Post: “Historically diverse Supreme Court hears disproportionately from White lawyers. The court is grappling with several cases involving race, including two affirmative action cases set to be argued Monday”  They also add White Male to that in the body of the article.

Since the start of the Supreme Court’s 2017 term, 374 lawyers have argued before the justices. Some have argued more than a dozen times, while others have done so only once.

To determine the demographics of this group, The Washington Post asked each of them to share their race or ethnicity, gender and other information about their backgrounds. More than 290 responded. The Post confirmed the race of seven more lawyers based on articles, speeches and interviews in which they described how they identify. The Post also confirmed lawyers’ gender identities based on their biographies on law firm and other professional websites and how the justices referred to them during oral arguments.

In total, The Post ascertained the gender identities of all 374 lawyers who have argued before the high court since the start of the 2017 term and the race of more than 80 percent of them.

Of those, nearly 81 percent are White, and 62 percent are White men. Nearly 9 percent are Asian American. While 19 percent of Americans and nearly 6 percent of lawyers in the United States are Hispanic, according to the American Bar Association, only 3.6 percent of the Supreme Court attorneys in the Post analysis were Hispanic. And while almost 14 percent of Americans and 4.5 percent of lawyers nationally are Black, only 2.3 percent of the lawyers in the Post analysis were Black.

Vincent van Gogh, “Head of a skeleton with a burning cigarette,” 1886

I’m not sure I trust the protection of my Constitutional writes to this mix.  I’m sure many can effectively argue for or against a case, provide evidence, and do so eloquently.  However, no one makes an argument like someone whose ox is about to be gored. The next read is from Axios and written by Sam Baker for Axios.  The lede is a good one for Halloween and the Supreme Court that’s hellbent on turning us back into medieval surfs. “Affirmative action is at death’s door at the Supreme Court.” Get along, little peasants!  Nothing to see here!

Why it matters: Harvard and UNC — supported by a host of other schools, as well as business organizations — argue that diversity is essential to the educational experience and that the only effective way to ensure diversity is to make it an explicit part of the admissions process.

• But they’ll be making that argument to a court that is extremely skeptical of any sort of racial preference.
• “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice John Roberts wrote in a 2007 opinion about the use of race when assigning kids to public schools.
• From voting rights to K-12 education to employment law and probably now college admissions, the court over the past several years has consistently knocked down programs that tried to correct racial inequities by explicitly taking race into account.

This is all largely one man’s doing. Conservative activist Ed Blum has organized and funded a slew of high-profile lawsuits explicitly designed to get the court to strike down affirmative action.

• He orchestrated a 2013 case in which a white student sued because she didn’t get into the University of Texas — and the sequel, in which the same student came back to the high court again in 2016.
• This time around, the named plaintiffs are not only white students but also Asian Americans, who say they’ve been discriminated against because of the way Harvard and UNC give preference to applications from Black and Hispanic students.
• This is not a particularly secretive endeavor. Blum is open about the fact that this is, effectively, a campaign, and that he is the campaign manager.
• “I’m a one-trick pony,” Blum recently told Reuters. “I hope and care about ending these racial classifications and preferences in our public policy.”
• Blum also had a hand in the landmark case that nullified a key section of the Voting Rights Act — another instance in which the conservative court said policies designed to offset a history of discrimination had outlived their usefulness.

Chris Geidner, MSNBC Opinion Columnist writes this: “Chief Justice John Roberts is about to get what he always wanted. That’s a problem. Supporters of race-conscious admissions policies should learn lessons from Democrats’ sluggish response to the overturning of Roe v. Wade.”  I’m not exactly sure any of us were sluggish, just at a loss for a way to take action with the split Senate.

Simple vote-counting offers no reason for hope. Roberts has long sought to eliminate or restrict race-conscious programs. In his second term on the court in 2007, Roberts declared in a case about primary school assignments that included race as a factor: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The other long-serving conservative justices are similarly strident. In 2003, Justice Clarence Thomas made his views clear: “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.” Justice Samuel Alito joined Roberts’ opinion in the 2007 primary school case. They and Thomas all dissented in a 2016 case about the University of Texas’ race-conscious admissions policies. Alito, in an opinion joined by Roberts and Thomas, referred to UT’s plan as “systematic racial discrimination.”

Now, they also have the three Trump appointees — Kavanaugh, Barrett and Neil Gorsuch — on the court with them. All the earlier appointees will need is two of those three votes to end all race-conscious higher education admissions policies.

Watching Uncle Clarence Thomas close the door behind him will certainly be interesting.

Odilon Redon, “The Cyclops,” circa 1898-1900

So, let me just put a few other things up, given we know now how important elections are.  I’d prefer no more morons appointing morons to any court.  Katelyn Polantz from CNN writes: “January 6 committee obtains eight emails showing possible planning of post-election crime.”  We must ensure we have control of Congress to learn more about this.

The House select committee investigating the January 6, 2021, attack on the US Capitol has obtained eight emails from late 2020 that a judge determined show Donald Trump and his lawyers planning to defraud courts and obstruct the congressional vote on the presidency.

A new court filing from Trump’s then-attorney John Eastman disclosed that the House said it had accessed the emails on Friday.

The House probe has been fighting for the records for months, and a federal judge cleared the way for the committee to receive them in recent weeks, calling them possible evidence of the planning of crimes on Trump’s behalf.

Eastman had tried several last-ditch attempts to hold off the committee. The panel declined to comment to CNN.

The emails that the committee finally has accessed include four communications between Trump attorneys that appear to indicate they knew details they submitted to courts to challenge the election were false, and four emails that reveal them discussing filing lawsuits as a way to hold off congressional certification of Trump’s electoral loss, Judge David O. Carter previously revealed.

One of the emails describes concern the lawyers had about submitting a declaration signed by Trump himself in a lawsuit challenging the election, which said the election fraud allegations it presented to the court were true, the judge’s previous opinion revealed. The Trump-signed statement was sent to court, even though the lawyers knew the allegations within weren’t sound, according to the court record.

Eastman is now asking the Ninth Circuit Court of Appeals for an order telling the House to return or destroy the eight emails.

Aksel Waldemar Johannessen, “The night,” 1920

Whoa!  That must be kinda scary for Eastman and Trump.  Too bad no medieval dungeons await them if true.

The outcome of the Brazilian elections is at the top of international news today.  This is from The New York Times:  “Brazil Elects Lula, a Leftist Former Leader, in a Rebuke of Bolsonaro.”

Voters in Brazil on Sunday ousted President Jair Bolsonaro after just one term and elected the leftist former President Luiz Inácio Lula da Silva to replace him, election officials said, a rebuke to Mr. Bolsonaro’s far-right movement and his divisive four years in office.

The victory completes a stunning political revival for Mr. da Silva — from the presidency to prison and back — that had once seemed unthinkable.

It also ends Mr. Bolsonaro’s turbulent time as the region’s most powerful leader. For years, he attracted global attention for policies that accelerated the destruction of the Amazon rainforest and exacerbated the pandemic, which left nearly 700,000 dead in Brazil, while also becoming a major international figure of the far right for his brash attacks on the left, the media and Brazil’s democratic institutions.

More recently, his efforts to undermine Brazil’s election system drew particular concern at home and abroad, as well as worldwide attention to Sunday’s vote as an important test for one of the world’s largest democracies.

Without evidence, the president has criticized the nation’s electronic voting machines as rife with fraud and suggested he might not accept a loss, much like former President Donald J. Trump. Many of his supporters vowed to take to the streets at his command.

As of 11 p.m. local time on Sunday night, Mr. Bolsonaro had not publicly commented on the election’s outcome. The questions of whether he would concede and when remained unclear.

The results on Sunday showed that tens of millions of Brazilians had grown tired of his polarizing style and the frequent turmoil of his administration. It was the first time an incumbent president failed to win re-election in the 34 years of Brazil’s modern democracy.

Still, Mr. da Silva won with the narrowest margin of victory over that same period, signaling the deep divide that he will confront as president.

He won 50.90 percent of the votes, versus Mr. Bolsonaro’s 49.10 percent with 99.98 percent of the vote counted Sunday night.

Katsushika Hokusai, 1830, “Ghost”

Let’s hope many nations get tired of right-wing, fascist thugs.  Polls in the US show the races tightening, but the Democratic candidates appear to have the edge in some because their constituents like them.  This is also from the New York Times on crucial Senate races. “Senate Control Hinges on Neck-and-Neck Races, Times/Siena Poll Finds. The contests are close in Arizona, Georgia, Nevada and Pennsylvania.”

Control of the Senate rests on a knife’s edge, according to new polls by The New York Times and Siena College, with Republican challengers in Nevada and Georgia neck-and-neck with Democratic incumbents, and the Democratic candidate in Pennsylvania clinging to what appears to be a tenuous advantage.

The bright spot for Democrats in the four key states polled was in Arizona, where Senator Mark Kelly is holding a small but steady lead over his Republican challenger, Blake Masters.

The results indicate a deeply volatile and unpredictable Senate contest: More people across three of the states surveyed said they wanted Republicans to gain control of the Senate, but they preferred the individual Democratic candidates in their states — a sign that Republicans may be hampered by the shortcomings of their nominees.

This is another reminder that we need to get out there and vote. We also need to bring people with us.

So, that’s it for me. I have to teach tonight, so no trick-or-treating for me!

What’s on your reading and blogging list today?