John Roberts: the kindly villain

[Chris D]

So how do all those legal apologists who thought Roberts' "even demeanor" and "respect for precedent" would lead him to a moderate path feel now? Can you find any of them?

This Supreme Court will wind up as one of sweeping radical right activism. The deluge has only begun, and this will be Bush the Lesser's real legacy.

[rollhead]

Agreed.

For some strange reason this post brought to mind my meeting, on the steps of the Arkansas Capitol, about 25 years ago, with Thom Robb.



The Knights of the Ku Klux Klan, led by Thom Robb of Harrison, Arkansas, is the largest KKK faction operating today. Over the last serveral years, Robb has toned down the Klan's extremist rhetoric in a deceptive effort to make it more palatable to the public. He has urged his followers to avoid harsh racist language and emphasize instead their "love of the white race." Recent literature from the Knights states that "the Knights of the Ku Klux Klan does not preach against Negroes. We believe that everyone has a right to love their heritage and race. ... We believe that white people have a right to be proud of our history and culture just as much as black people have a right to be proud of theirs."

[Gentle Giant]

Worst of all, he's only 52.

[Al in NYC]

...and, according to yesterday's NYT, Scalia has mounted a scathing attack on him because he doesn't believe that Roberts is going far enough.

[jesus marion joseph]

Originally Posted by rollhead

We believe that white people have a right to be proud of our history and culture just as much as black people have a right to be proud of theirs."

Yeah, who wouldn't be proud of white heritage?

[Gentle Giant]

strange fruit

[Chris D]

Now I see that Emily Bazelon at Slate has made this case more fully and more eloquently than I ever could.

[walto]

A lot of bad, long-precedent busting decisions from that crew lately.

Overturning the 1911 anti-trust case doesn't float my boat either. It just makes big businesses that much more powerful and will almost certainly raise prices for consumers.

Maybe frankipop was right about Miers after all.

[Scott Dolan]

I didn't like Alito from the very begining. He came across as a real asshole during his confirmation hearing.

Roberts came across pretty well, OTOH.

I've hired folks in the past. As has Kelly, and likely most everyone here. It's a crap shoot.

[Scott Dolan]

This will be interesting to watch.

http://www.cnn.com/2007/LAW/06/29/sc....ap/index.html

[Monte Smith]

I'm holding out hope that the knocking down of strictly race-based programs in Seattle and Louisville and the recommendation of the Michigan model won't mean that Blacks are lassoed and strung from trees.

[Paul B]

Agree; the lynching photo is over the top, and has nothing to do with the matter at hand.

[Scott Dolan]

I'm pretty sure jmj wasn't implying that we would return to those days. I think it was just a general statement concerning white folk heritage.

[shrugs]

Heritage Not Hate.

yeah........

[Sandi22]

Just who does this Supreme Court Justice think he's fooling, or is he out to fool himself? This Bush appointee. What a travesty, any fool knows just what Robert L. Carter meant when he spoke those words. He was asking for equal education for blacks and any other minority's who had been given sub-standard educations for so long. How ridiculious of Chief Justice Roberts. What a phony, made up, bunch of tripe this is. SRH:

"Quote"... Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.

“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”

William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.” ...

-----------------------------

... Professor Greenberg suggested that more than law was at play in yesterday’s decision.

“You can’t really say that five justices are so smart that they can read the law and precedents and four others can’t,” he said. “Something else is going on.” ..."Quote"

***

Is there no shame in this man? In this Chief Justice Roberts? There seems not to be. What a poor excuse this is for our highest courts Chief Justice.

I'm embarrassed for him, and I'm more than outraged by his phony reasoning. If he believes this to be the way it was and is, then his reasoning capabilities are hurting, actually, they're next to non-existent.

Give us a break, would you?

Another Bush appointee>>>> well then it's no wonder. SRH

[walto]

Can you provide the link to that article, Saundra?

Thanks.

[jesus marion joseph]

Originally Posted by Scott Dolan

I'm pretty sure jmj wasn't implying that we would return to those days. I think it was just a general statement concerning white folk heritage.

It was really aimed more at the heritage of white folks who wear sheets and hoods and don't care much to mingle with "others". Like I said, who wouldn't be proud of that?


And since when do threads in Speakeasy stay on topic, Paul B??!!

[Paul B]

Originally Posted by jesus marion joseph

And since when do threads in Speakeasy stay on topic, Paul B??!!

I have no problem with a thread changing topic, I just think comparing the recent Supreme Court decision to a lynching is a bit much. Monte made the point quite clearly, and I merely agreed with him.

[shrugs]

Did you read rollhead's post?

[jesus marion joseph]

I'm not looking to pick a fight, just sayin' shrugs seems to understand that my picture was in reference to the quote from the klansman in rollie's post; not to be construed as a comparison to the SC decision.

[Sandi22]

Originally Posted by walto

Can you provide the link to that article, Saundra?

Thanks.

Here's the link along with the complete article
http://www.nytimes.com/2007/06/29/us...=1&oref=slogin

NEWS ANALYSIS

The Same Words, but Differing Views

By ADAM LIPTAK
Published: June 29, 2007

The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.

Supreme Court Decisions on the Racial Makeup of Schools All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, “faithful to the heritage of Brown.”

But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.

And as those reactions make clear, yesterday’s decision has reignited a societal debate about the role of race in education that will almost certainly prompt divisive lawsuits around the country. Indeed, the decision has invited a fundamental reassessment of Brown itself, perhaps the most important Supreme Court decision of the 20th century.

“There is a historic clash between two dramatically different visions not only of Brown,” said Laurence H. Tribe, a law professor at Harvard, “but also the meaning of the Constitution.”

The four conservatives on the court said Brown and the 14th Amendment’s equal protection clause required the government to be colorblind in making decisions about placing students in public schools in all circumstances. The four liberals said Brown meant to allow school districts to take account of race to achieve integration.

In the middle was Justice Anthony M. Kennedy, whose concurring opinion, at once idiosyncratic, enigmatic and decisive, was perhaps the least engaged with Brown, saying little more than that the case “should teach us that the problem before us defies” an “easy solution.” Justice Kennedy’s concurrence, which split the court 4-1-4 on a crucial point, sharply limited the role race could play in school assignments but did not forbid school districts from taking account of race entirely.

Charles J. Ogletree Jr., a law professor at Harvard and an authority on Brown and its aftermath, applauded that concurrence. “The hidden story in the decision today is that Justice Kennedy refused to follow the lead of the other four justices in eviscerating the legacy of Brown,” Professor Ogletree said.

Writing for the other four justices in the majority, Chief Justice Roberts took a harder line. In an unusual effort to cement his interpretation of Brown, he quoted from the transcript of the 1952 argument in the case.

“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”

Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice’s interpretation “preposterous.”

“The plaintiffs in Brown were concerned with the marginalization and subjugation of black people,” Professor Greenberg said. “They said you can’t consider race, but that’s how race was being used.”

William T. Coleman Jr., another lawyer who worked on Brown, said, “The majority opinion is 100 percent wrong.”

“It’s dirty pool,” said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, “to say that the people Brown was supposed to protect are the people it’s now not going to protect.”

But Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a research group in the Washington area that supports colorblind government policies, disagreed, saying the majority honored history in yesterday’s decision.

“There is no question but that the principle of Brown is that a child’s skin color should not determine what school he or she should be assigned to,” Mr. Clegg said.

Chief Justice Roberts wrote that Brown not only supported but also required yesterday’s decision striking down student assignment plans in Seattle and Louisville, Ky., meant to ensure racially balanced schools.

Justice John Paul Stevens, in dissent, said Chief Justice Roberts’s discussion of Brown “rewrites the history of one of this court’s most important decisions.” Justice Stephen G. Breyer, also dissenting, said the opinion “undermines Brown’s promise of integrated primary and secondary education” and “threatens to substitute for present calm a disruptive round of race-related litigation.”

Professor Greenberg said he was also wary of the reaction to yesterday’s decision. “Following Brown, there was massive resistance” that lasted some 15 years, he said. “This is essentially the rebirth of massive resistance in more acceptable form.”

Mr. Clegg, by contrast, said the decision’s practical consequences should be minimal. “Kennedy does leave the door open to some degree of consideration of race,” he said, “but it’s not very clear what that would be.”

As a consequence, Mr. Clegg said, most prudent school districts would shy from any use of race in assigning students for fear of costly and disruptive litigation.

Professor Greenberg suggested that more than law was at play in yesterday’s decision.

“You can’t really say that five justices are so smart that they can read the law and precedents and four others can’t,” he said. “Something else is going on.” Steven Greenhouse contributed reporting.

[walto]

Thanks!

[Sandi22]

You're welcome!

[Sandi22]

.

papsrus: And for a little broader context ... "Warning: the following may cause "conservatives" who spent years railing against "activist judges" to experience profound dizziness .... or maybe not."

(I borrowed this from papsrus, I don't think he'll mind. SRH)

Roberts, Alito and The Rule of Law

Geoffrey R. Stone
Posted June 28, 2007 | 07:30 PM (EST)

For the Supreme Court of the United States, this will be remembered as the year of intellectual dishonesty. In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis.

John Roberts assured the Senate Judiciary Committee that judges must "be bound down by rules and precedents." Invoking Alexander Hamilton and James Madison, he affirmed that "the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability," and "integrity in the judicial process." Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly "unworkable" over time. But in general, "a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."

Similarly, Samuel Alito testified to the Senate that the doctrine of stare decisis is "a fundamental part of our legal system." This principle, he explained, "limits the power of the judiciary" and "reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions." Stare decisis, he added, it is "not an inexorable command," but there must be a strong "presumption that courts are going to follow prior precedents."

It is hardly surprising that Roberts and Alito would pay such obeisance to the doctrine of stare decisis in order to get themselves confirmed. Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.

Disturbingly, John Roberts's and Samuel Alito's actions on the Court now speak much louder than their words to Congress. During the past year, Roberts and Alito have repeatedly abandoned the principle of stare decisis, and they have done so in a particularly insidious manner. In a series of very important decisions, they have cynically pretended to honor precedent while actually jettisoning those precedents one after another.

The tactic, in short, is to purport to respect a precedent while in fact interpreting it into oblivion. Every first-year law student understands the technique. It works like this: "Appellant argues that Smith v. Jones governs the case before us. But Smith v. Jones arose out of an accident that occurred on a Tuesday. The accident in this case occurred on a Thursday. We do not overrule Smith v. Jones, but we limit it to accidents that occurr on Tuesdays." This illustration is, of course, a parody of the technique. But it captures the Roberts/Alito style of judicial craftsmanship.

Let me offer just a few examples. In Gonzales v. Carhart, the Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called "partial birth abortions," even though the Court had held a virtually identical state law unconstitutional seven years earlier. As Justice Ruth Bader Ginsburg rightly observed in dissent, the majority, which included Justices Roberts, Alito, Scalia, Kennedy, and Thomas), offered no principled basis for ignoring the earlier decision. The only relevant change was Alito for O'Connor.

In Federal Election Commission v. Wisconsin Right to Life, the same five-justice majority held unconstitutional a provision of the Bipartisan Campaign Reform Act that limited political expenditures by corporations, even though the Court had upheld the same provision only four years earlier. As Justice David Souter rightly observed in dissent, Chief Justice Roberts's opinion offered no principled basis for disregarding the earlier decision.

In Hein v. Freedom from Religion Foundation, the same five-justice majority, in an opinion by Justice Alito, held that individual taxpayers had no "standing" to challenge the constitutionality of the Bush administration's program of faith-based initiatives as violative of the Establishment Clause, even though the Court had held some forty years ago that taxpayers do have standing to challenge federal expenditures on these grounds. As Justice Souter rightly observed in dissent, Alito's argument that the earlier decision was distinguishable because it involved a challenge to a legislative rather than an executive program has no basis "in either logic or precedent."

In Parents Involved in Community Schools v. Seattle School District, the same five-justice majority (with Justice Kennedy filing a separate concurring opinion), in an opinion by Chief Justice Roberts, held that the consideration of race by school districts in assigning students to public schools in order to promote racial diversity violates the Equal Protection Clause, even though the Court had unanimously declared more than thirty-five years ago that such a policy "is within the broad discretionary authority of school authorities."

As Justice Breyer rightly asked in dissent, "What has happened to stare decisis?" Breyer correctly observed that Roberts had distorted the Court's precedents, "written out of the law" a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law. Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them.

John Roberts and Samuel Alito billed themselves as legal craftsmen who would be guided not by rank ideology, but by a respect for the rule of law. They have now proved otherwise.

[Jeffrey Wozniak]