People who opposed the appointment of Sonia Sotomayor to the Supreme Court often cited her discussion of race, gender and judging. Although Sotmayor's analysis of this issue was tentative and layered, critics assailed her for suggesting that a "Wise Latina" would analyze issues better than other judges.
After less than one week on the bench, I definitely prefer the Wise Latina to Justice Antonin Scalia and Justice Thomas, who are clearly vying for positions on the imaginary "Death Panels" that the Obama administration is supposedly creating. In two recent death penalty cases, Scalia and Thomas voted against the inmates and in favor of execution. Sotomayor only voted in one case -- joining the liberal dissenters and voting for a stay of execution. The Supreme Court split in the cases, with a majority voting for the inmate in one case and against the inmate in the other.
The Troy Davis Case
The Justices gave more analysis in the Troy Davis appeal. In the Davis case, the Court ordered the trial judge to give Davis -- a Georgia black man convicted of killing a police officer -- the opportunity to present newly discovered evidence that was unavailable at the time of his trial. Davis argues that this evidence would prove his innocence.
Since the time Davis was convicted, most of the lead prosecution witnesses, including several individuals who identified Davis as the shooter, have recanted. Several of them assert that another prosecution witness, who was at the scene of the crime and who identified Davis as the killer, was in fact the shooter.
The Davis case has attracted the attention of many powerful individuals, including Jimmy Carter, Pope Benedict XVI, and former prosecutors and judges -- who believe Davis should have the opportunity to present newly discovered evidence that establishes his innocence.
We Do Not Care If You Are Actually Innocent: You Must Die
Justice Scalia and Thomas disagree with Davis and his supporters. Scalia's characteristically passionate dissent in the case makes him look like a bloodthirsty reaper. Scalia's dissent (in which Thomas joins) contends that even if Davis could establish his "actual innocence," this would not create a basis for a federal court to prevent his execution.
Scalia contends that federal statutory law would preclude any relief for Davis, even if he established his innocence. Accordingly, he concludes that ordering the district court to conduct an evidentiary hearing is foolish.
But as Justice Stevens argues, the statute cannot trump a constitutional violation. I suspect that several of the justices believe that knowingly executing a person who has sufficiently established his innocence would violate the constitution.
This Is Not Scalia's First Execution-Hungry Statement
This is not the first time that Scalia has expressed callousness towards a person facing execution. In McCleskey v Kemp, another Georgia case involving a black man convicted of killing a police officer, Scalia sided with the majority, which held that McCleskey failed to show that race impacted his own sentence. A study of the Georgia death penalty, however, made a strong case that race impacted the general application of capital punishment in Georgia (see prior blog posts here, here, and here).
Although the majority held that McCleskey failed to show racial discrimination in his particular case, during the Court's deliberation, Scalia sent a memorandum to the other justices that contained a shocking argument. Scalia conceded that juries and prosecutors make decisions based on race and that he did not need any more "proof" in McCleskey's case.
Scalia, however, argued that racism among jurors and prosecutors was "ineradicable." In other words, Scalia described racism as a natural part of the criminal justice system that courts could not end -- or, presumably, even remedy. Although I agree that racism is a serious problem in the criminal justice system, I also believe that courts have a constitutional obligation to remedy it.
PS: I never heard any conservatives reconcile their support of Scalia with their dislike of Sotomayor due to her vote against the Ricci plaintiffs. Voting against a party seeking a promotion is one thing; voting to send someone to the death chamber -- while conceding that race mattered -- epitomizes injustice.
Update: In the original post, I inadvertantly omitted a link to Scalia's dissent. I have updated the post to provide a link to the opinion -- which you can read here: Scalia's Dissent in Davis.
Showing posts with label justice thomas. Show all posts
Showing posts with label justice thomas. Show all posts
Wednesday, August 19, 2009
Thursday, June 25, 2009
Justice Thomas: A Little Empathy Please!
Today, the Supreme Court ruled 8-1 that school officials in Safford, Arizona violated the constitutional rights of Savana Redding when they subjected her to a strip search. School officials, acting on a tip from another student, suspected that Savana (who was then 13-years-old) possessed a prescription equivalent of two Advil tablets. School policy prohibited students from possessing any prescription or over-the-counter medication without prior consent.
School officials first searched Savana's backpack, but they found no evidence of drugs. Next,
The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.
Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."
This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.
Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.
This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.
These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.
Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."
Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.
In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:
School officials first searched Savana's backpack, but they found no evidence of drugs. Next,
[They] asked Savana to remove her jacket, socks, and shoes, leaving her in stretchpants and a T-shirt. . .which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.Savana's mother sued the school district, arguing that the search violated Savana's Fourth Amendment right against "unreasonable searches and seizures." The Supreme Court agreed.
The Court, however, held 7-2 that school officials did not infringe a "clearly established" right. This part of the ruling immunizes school officials from a damage award. Justice Stevens and Justice Ginsburg dissented on the immunity issue.
Justice Thomas: Pathetically Unempathetic
Justice Thomas agreed with the immunity ruling, but he supplied the lone dissent to the Court's conclusion that the search violated the Constitution. In his dissent, Thomas robotically states that: "Judges are not qualified to second-guess the best manner for maintaining quiet and order in the school environment."
This argument, however, distorts the substance of the Court's ruling. The Court did not "second guess" school officials. Instead, it enforced the constitutional rights of students -- rights held by "all persons" against state intrusion. Thomas's description of the Court's important role in the protection of individual liberty as the annoying micromanagement of school administrators shows a great disrespect for the Constitution and the Court.
Thomas's dissent is even more troubling when one considers that he and six other justices concluded that the school officials did not violate a "clearly established" right when they conducted the search. Generally, government officials are immune from damages unless their behavior violates a right that was "sufficiently clear" in preexisting law. The Court concluded that the diversity of judicial opinions on the legality of strip searches in the lower courts counsels against a finding that the right was clearly established at the time of the search.
This portion of the ruling proves the often ignored or misunderstood fact that constitutional law is not always clear and precise and that the facts and precedent related to a particular case will not always compel a single outcome. As the majority states, there are "numerous" "well reasoned majority and dissenting opinions" that reach a different conclusion on strip searches than the Supreme Court.
These divergent outcomes arise because the law in this area applies a flexible standard. Under this standard, a search is "permissible. . . when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. . . ." Reasonable judges, however, can reach different conclusions about the "reasonableness" or "excessiveness" of a search.
Because the relevant standard supports multiple, logical outcomes, then empathy could influence a judge's decision without making the ruling an unreasonable or improper statement of "the" law. In fact, the test used in this area calls explicitly for empathy. It forces judges to determine whether a search was too intrusive in light of the student's "age and sex."
Accordingly, the majority considered Savana's subjective reaction to the search and held that: "Savana’s subjective expectation of privacy against [the] search is inherent in her account of it as embarrassing, frightening, and humiliating." In other words, the Supreme Court found a Fourth Amendment violation in part because it recognized and took into consideration Savana's emotional response to the search. The Court's ruling, therefore, rests explicitly on judicial consideration of Savana's feelings, emotions and her perceived vulnerability during the search. This part of the ruling displays the type of empathy that President Obama says he seeks in a Supreme Court justice, and 8 justices, including four of the conservatives, subscribed to it.
In addition to considering Savana's reaction to the search, the Court also discusses the emotional impact of strip searches upon adolescents in general. Citing to psychological literature for support, the Court finds that:
Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be. . . .If this is true, then, given the flexibility of the relevant test, Thomas could (and should) have shown empathy for Savana. Instead, Thomas has written an opinion that trivializes individual liberty and defends the interests of school officials who were apparently so exercised over the possible presence of Ibuprofen at the school that they forced a young girl to display her breasts and pelvic area to gazing and searching adults.
Monday, June 22, 2009
The "Political" Supreme Court Avoids Constitutional Question Regarding the Voting Rights Act; Thomas Dissents
History of Voting Rights Act
Enacted in 1965, the Voting Rights Act is the most potent legislative response to voter disenfranchisement in the history of the United States. Although the 15th Amendment prohibits the denial of voting rights on the basis of race, until the 1960s, this constitutional provision went largely unenforced in most of the Southern states. During Reconstruction, President Grant frequently dispatched Union forces to protect blacks from violence at the polls. Even this support, however, could not prevent violence, such as the 1872 Colfax Massacre in Grant Parish, Louisiana. During the Colfax Massacre, 150 blacks were murdered as they attempted to secure the county courthouse from white Democrats who unlawfully claimed control. Until the passage of the Voting Rights Act, blacks in some Southern states could not vote whatsoever, due to racial terrorism and laws such as "poll taxes," which impeded political participation.
The Voting Rights Act forbids policies such a poll taxes that were blatantly designed to evade the 15th Amendment. It also prohibits any election law that systematically denies voting rights to a defined racial group.
Section 5: Preclearance Requirement
Section 5 of the Voting Rights Act requires that certain states that were among the worst infringers of the right to vote must get "preclearance" from the Department of Justice before enacting any changes to their election laws. This rule applies to political subdivisions -- like cities and counties -- within those states as well.
The 15th Amendment authorizes Congress to enforce its terms with "appropriate legislation." Since the passage of the Voting Rights Act, Congress has reauthorized Section 5 several times, most recently in 2006 -- for 25 additional years.
The Litigation Challenging Section 5
In Northwest Austin Municipal Utility District Number One v. Holder, the plaintiff, a subdivision of Austin, Texas, sued the United States, arguing that Section 5 exceeds the scope of Congress's authority to enforce the 15th Amendment. The plaintiff argued that because it was never found to have denied voting rights to persons based on race, it need not comply with the preclearance requirement. The lower court denied relief to the plaintiff. Today, the Supreme Court unanimously reversed the judgment below. Justice Thomas dissented in part from the Court's reasoning, but he concurred in the decision to reverse the judgment of the lower court.
Although the plaintiff asserted that Congress has exceeded its authority by requiring preclearance, it also contended that the Voting Rights Act contains a statutory "bailout" provision that allows subdivisions to escape the preclearance requirements under certain conditions. The plaintiff argued that it should prevail under either the statutory or constitutional claim.
The statutory claim gave the Court an escape hatch. Rather than resolving the controversial issue regarding the constitutionality of preclearance, the Court punted the issue and decided the case on statutory grounds alone. It reversed the lower court and held that the plaintiff should be able to prove that it meets the conditions for the statuturoy bailout. The case will now go back to the District Court for proceedings that concentrate on the bailout provision.
Justice Thomas, the lone dissenter, agreed that the lower court misapplied the statutory bailout provision, but he would have reached the constitutional question. Thomas would have held that the preclearance requirement exceeds the scope of Congress's authority to enforce the 15th Amendment.
The Supreme Court as Political Player
By declining to address the constitutional question, the Court has avoided deciding a very complex issue that divides many lawyers, legal scholars, and politicians. Many conservatives believe that the preclearance provision is unfair and unnecessary, while liberals argue that preclearance has allowed for the successful political participation of blacks and Latinos and that this success should mean the continuation, rather than cessation, of the policy. In 2006, conservatives in Congress deep expressed concern regarding preclearance, but they ultimately voted strongly in favor of reauthorization, perhaps fearing a backlash prior to the midterm elections.
These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives (particularly in light of the likely reversal of Ricci v. DeStefano).
Because the Court did not rule definitively on this issue, however, it will probably reappear in subsequent litigation. Depending on the politics of the moment and the composition of the Court, a subsequent case could provide the opportunity for conservatives to invalidate a remedial statutory measure that Congress strongly supports and that most political scientists, historians and legal experts credit for removing severe structural barriers to political participation among persons of color.
See additional coverage at the SCOTUS Blog.
Enacted in 1965, the Voting Rights Act is the most potent legislative response to voter disenfranchisement in the history of the United States. Although the 15th Amendment prohibits the denial of voting rights on the basis of race, until the 1960s, this constitutional provision went largely unenforced in most of the Southern states. During Reconstruction, President Grant frequently dispatched Union forces to protect blacks from violence at the polls. Even this support, however, could not prevent violence, such as the 1872 Colfax Massacre in Grant Parish, Louisiana. During the Colfax Massacre, 150 blacks were murdered as they attempted to secure the county courthouse from white Democrats who unlawfully claimed control. Until the passage of the Voting Rights Act, blacks in some Southern states could not vote whatsoever, due to racial terrorism and laws such as "poll taxes," which impeded political participation.
The Voting Rights Act forbids policies such a poll taxes that were blatantly designed to evade the 15th Amendment. It also prohibits any election law that systematically denies voting rights to a defined racial group.
Section 5: Preclearance Requirement
Section 5 of the Voting Rights Act requires that certain states that were among the worst infringers of the right to vote must get "preclearance" from the Department of Justice before enacting any changes to their election laws. This rule applies to political subdivisions -- like cities and counties -- within those states as well.
The 15th Amendment authorizes Congress to enforce its terms with "appropriate legislation." Since the passage of the Voting Rights Act, Congress has reauthorized Section 5 several times, most recently in 2006 -- for 25 additional years.
The Litigation Challenging Section 5
In Northwest Austin Municipal Utility District Number One v. Holder, the plaintiff, a subdivision of Austin, Texas, sued the United States, arguing that Section 5 exceeds the scope of Congress's authority to enforce the 15th Amendment. The plaintiff argued that because it was never found to have denied voting rights to persons based on race, it need not comply with the preclearance requirement. The lower court denied relief to the plaintiff. Today, the Supreme Court unanimously reversed the judgment below. Justice Thomas dissented in part from the Court's reasoning, but he concurred in the decision to reverse the judgment of the lower court.
Although the plaintiff asserted that Congress has exceeded its authority by requiring preclearance, it also contended that the Voting Rights Act contains a statutory "bailout" provision that allows subdivisions to escape the preclearance requirements under certain conditions. The plaintiff argued that it should prevail under either the statutory or constitutional claim.
The statutory claim gave the Court an escape hatch. Rather than resolving the controversial issue regarding the constitutionality of preclearance, the Court punted the issue and decided the case on statutory grounds alone. It reversed the lower court and held that the plaintiff should be able to prove that it meets the conditions for the statuturoy bailout. The case will now go back to the District Court for proceedings that concentrate on the bailout provision.
Justice Thomas, the lone dissenter, agreed that the lower court misapplied the statutory bailout provision, but he would have reached the constitutional question. Thomas would have held that the preclearance requirement exceeds the scope of Congress's authority to enforce the 15th Amendment.
The Supreme Court as Political Player
By declining to address the constitutional question, the Court has avoided deciding a very complex issue that divides many lawyers, legal scholars, and politicians. Many conservatives believe that the preclearance provision is unfair and unnecessary, while liberals argue that preclearance has allowed for the successful political participation of blacks and Latinos and that this success should mean the continuation, rather than cessation, of the policy. In 2006, conservatives in Congress deep expressed concern regarding preclearance, but they ultimately voted strongly in favor of reauthorization, perhaps fearing a backlash prior to the midterm elections.
These same political calculations could have motivated conservatives on the Court, who undoubtedly disagree with preclearance (as indicated by the multiple reservations expressed in the Court's opinion), but who, nevertheless, believe that a ruling against Congress on this important issue could damage the "legitimacy" of the Court and further erode support for conservatives (particularly in light of the likely reversal of Ricci v. DeStefano).
Because the Court did not rule definitively on this issue, however, it will probably reappear in subsequent litigation. Depending on the politics of the moment and the composition of the Court, a subsequent case could provide the opportunity for conservatives to invalidate a remedial statutory measure that Congress strongly supports and that most political scientists, historians and legal experts credit for removing severe structural barriers to political participation among persons of color.
See additional coverage at the SCOTUS Blog.
Thursday, June 4, 2009
Sotomayor's Opponents Apply Racial and Gendered Double-Standard
The hundreds of cases Sonia Sotomayor has decided do not allow her opponents to build an honest case against her. Accordingly, they seek to portray her as unfit for the Supreme Court by extracting and distorting phrases from a few of her speeches and law review articles. Sotomayor's opponents have relied heavily on comments she made during a 2001 conference at the University of California at Berkeley in order to portray her as a racist and impartial jurist. Although Media Matters has handily refuted such arguments, I have not seen any media coverage that examines similar race and gender commentary by current and former Supreme Court justices. If Sotomayor's comments on race and gender make her unfit for the Supreme Court, then statements by Justice O'Connor, Justice Rehnquist (now deceased), Justice Scalia, Justice Kennedy, Justice Thomas, and Justice Ginsburg make them unfit for the Supreme Court as well.
Justice O'Connor
In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:
Justice Ginsburg
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:
Justice Scalia
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:
Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.
Justice Rehnquist
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.
Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."
As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.
Justice Kennedy
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:
Justice Thomas
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.
Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:
Final Thought
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.
For links to all of my articles on Sotomayor, CLICK HERE.
Justice O'Connor
In JEB v. Alabama, O'Connor agreed with the majority of the Court which held that prosecutors could not exclude jurors based on sex. O'Connor, however, wrote a concurring opinion that criticizes the view that gender is irrelevant to the legal process:
We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .O'Connor also stated that she hoped the Court would not extend the ruling to prohibit private lawyers from considering gender when selecting jurors. O'Connor said that a reasonable attorney would want women on the jury in cases such as sexual harassment. Clearly, O'Connor believes that women offer a qualitatively different (perhaps even better) perspective than men in certain settings.
[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.
Justice Ginsburg
In United States v. Virginia, Justice Ginsburg wrote the majority opinion invalidating a Virginia Military Institute policy that excluded women. Ginsburg's opinion discusses the relevance of gender in society and law, citing a long line of Supreme Court precedent:
Physical differences between men and women. . . are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both". . . .Ginsburg believes that gender remains relevant for the advancement of the "talent" and "capacities" of the Nation, and the Supreme Court continues to validate laws and policies which it concludes rest on "real" or "inherent" differences between men and women. Supreme Court precedent credits the very claims about sex that Sotomayor has previously made.
"Inherent differences" between men and women. . .remain cause for celebration. . . .Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered,". . . to "promot[e] equal employment opportunity," . . . [and] to advance full development of the talent and capacities of our Nation's people. . . .
Justice Scalia
In McCleskey v. Kemp, Scalia voted with the majority and rejected the petitioner's claim that Georgia applied the death penalty in a racially discriminatory fashion. The majority concluded that McCleskey did not prove the he suffered from discrimination in his individual case. Prior to the issuance of the McCleskey decision, however, Scalia wrote a memorandum to the other justices in which he stated that he actually did not need additional "proof" of racial discrimination because he believes race influences jurors and prosecutors but that the Supreme Court could not eradicate this behavior:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.Furthermore, in Johnson v. Transportation Agency of Santa Clara County, Scalia argued that white men are "victims" in society but that women and people of color are powerful. He made this observation in a dissenting opinion, which disagreed with the majority's conclusion that an employer did not violate federal antidiscrimination law by taking gender into account when it decided to promote a woman over a male candidate: "[T]he only losers in the process are the Johnsons of the country . . . ."
Not only does Scalia "empathize" with white men, but he concludes that they are powerless relative to women and persons of color, and his believes the Court should have issued a ruling based on this observation. If Scalia's views on race and sex do not disqualify him from the bench, then neither should Sotomayor's prior statements.
Justice Rehnquist
Before Justice Rehnquist was confirmed to the Supreme Court he had a history of racial insensitivity. For example, as a law clerk, he advised Justice Jackson to uphold the "separate but equal" principle announced in Plessy v. Ferguson and to vote against the plaintiffs who challenged school segregation in Brown v. Board of Education.
Rehnquist also urged Justice Jackson to rule that the Democratic Party's use of "white primaries" in Texas (which excluded black and Latino voters) did not violate the Constitution. Rehnquist, seemingly exhausted by the racial progress that occurred during his clerkship, argued that: "It is about time the Court faced the fact that the white people of the south don’t like the colored people. . . ."
As the Attorney General in the Nixon administration, Rehnquist, echoing his opposition to Brown, drafted a constitutional amendment which would have banned busing in order to remedy school segregation. Also, as a resident of Phoenix, Arizona he opposed the enactment of a local ordinance that banned racial discrimination in places of public accommodation. Despite his racist views, Rehnquist was confirmed as an Associate Justice and later as Chief Justice over the objection of liberals who cited to his past racial positions.
Justice Kennedy
Justice Kennedy authored the majority ruling in Gonzalez v. Carhart, which upheld the federal prohibition of partial-birth abortion. In the ruling, Kennedy expresses empathy toward hypothetical women whom he says could regret their decision to undergo the procedure. Based on his romanticized and paternalistic notions about gender, Kennedy argues that Congress could ban the procedure altogether in order to protect women from their bad decisions:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow. . . .As Ginsburg notes in her dissent, Kennedy's "way of thinking reflects ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited. . . ." Kennedy's ruling implies that the 5-male majority in Carhart (and the hundreds of men in Congress who enacted the law) can make better decisions than women who want to undergo this procedure after consulting their medical providers. Kennedy's gender-based perspective, however, has not eroded his prestige among conservatives.
Justice Thomas
Finally, Justice Thomas has discussed race by drawing upon his experiences as a black person who grew up in Southern segregation (see this series of articles discussing his autobiography). For example, Thomas always agrees with conservatives in affirmative action cases, but he usually writes separately to discuss his views about the negative impact of affirmative on blacks -- a position that many blacks reject.
Thomas also wrote a passionate dissent in Virginia v. Blacks, a case in which the Supreme Court invalidated a Virginia law that made cross-burning a crime. A majority of the Court argued that the statute infringed the First Amendment. And while there were several dissenting opinions, Thomas, who admits growing up in fear of the Ku Klux Klan, wrote a dissent, in which no other justice joined. Thomas argued that cross-burning is never intended to do anything other than convey a threat or to intimidate individuals:
That cross burning subjects its targets, and, sometimes, an unintended audience. . .to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality.Thomas's experience living in fear of the KKK undoubtedly shaped his opinion in this case. Nevertheless, Thomas remains a respected jurist among conservatives.
Final Thought
Despite the use of race- and gender-based decision making by many Supreme Court justices -- including beloved conservatives -- Sotomayor's opponents continue to argue that she is unfit for the bench. As conservatives question Sotomayor's impartiality, they should also question the blatant double-standard they are using to challenge her nomination.
For links to all of my articles on Sotomayor, CLICK HERE.
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