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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Wednesday, May 16, 2018

Landmark Cases: Bakke/Affirmative Action

[Per the Civil Rights Act of 1964,] we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed, states a claim under Title VII.
-- Justice Thurgood Marshall in McDonald v. Santa Fe Trail Transp. Co. (1976)
Yes, it did. But, the constitutionality of affirmative action programs that in some fashion gives a "plus" based on race (or some other criteria, such as sex, which also currently receives heightened scrutiny)  is not quite the same question.  Nor, the application of a federally funded college affirmative action program or even the standing to make such a claim.  That is the issue at hand as Landmark Cases, Season 2, came to a close.*

My philosophy is generally "it is complicated," but I do have a sentiment toward basic rules.  So, it is understandable that some people use a one size fits all approach in this area though it doesn't really hold up to scrutiny. For instance, some like to reference Justice Harlan's Plessy dissent regarding the maxim that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." But, Harlan accepted public school segregation and additional punishment for interracial fornication. His rhetoric was not to be taken totally literally. And, especially regarding public benefits, the originalist argument leaves something to be desired. Perhaps, this is why people like Scalia (see Rick Hasen's latest book) and Thomas use rhetoric more than history to back up there positions

The ruling here was split three basic ways (4-1-4) with Justice Stevens uniting the four dissenters in arguing that statutorily the affirmative action policy was invalid. A decade later, in Johnson v. Transportation Agency, he submitted to precedent there and accepted the law held otherwise.  But, Stevens -- though he left open some room for use of race based classifications in such areas, was rather strong about his concerns in the past, including references to Nazi Germany. It wasn't just a matter of fit. White joined with the liberals but separately argued that Bakke didn't have a cause of action to raise the statutory case though the majority rested on constitutional principle.

The decision of the case turned on Justice Powell and his position in effect also was later recognized (up to and including Fisher) as the law of the matter. Powell argued that the federal law at issue should be understood to bar the sort of "discrimination" that is unconstitutional, not something more. Furthermore, it is acceptable to use race as a factor in student selection as a matter of academic freedom (diversity) but a set number of seats is too blunt of an approach.  Societal discrimination is too open-ended of a state interest and there is not enough evidence that the policy was necessary for some sort of role model or to provide doctors to certain communities.  I see his position as a reasonable compromise approach but never really understood why social discrimination wasn't enough given the evidence we have. See also, Justice Marshall's separate opinion.**
We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.
The opinions from the left appealed to various other situations where some benefit is selectively provided to specific racial or other groups (sex, vets, athletes, etc.; note many of these are not given the level of concern as race, so there is a key different, if only up to a point -- mere academic competence alone isn't the test here).  Powell argued they were different in various ways. I won't examine the issue here, but find the differences somewhat questionable though they are not all alike to be sure.  Note the special exception given that has a specific judicial cast; see also, two justices [Stewart/Rehnquist] from the conservative side in a later case.  Does the fifth section of the Fourteenth Amendment, at least, not suggest Congress has a special role here?  And, various things historically provided limited benefits to certain groups over others without "constitutional or statutory violations" being required. The matter has been dealt more strictly in the current era, but many conservatives dissented to such scrutiny.

Brennan provided the main partial dissent from the liberal side, reaffirming that race repeatedly was used to advance equality.  He cited cases like Yick Wo, a past case in this series, to note that stigma is a particular concern when determining invidious discrimination. Justice Stevens later reaffirmed this idea that race based affirmative action programs are not the same thing as Jim Crow laws (a door in the face is not the same as a welcome mat).  The set aside of a certain number of seats to him was not of constitutional significance.  Justice Blackmun basically said the same general things in his Blackmun sort of stream of conscious ways, adding the line that is best remembered that the way to address racism is to take account of race:
I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way.
Justice Kennedy in recent years in particular has been concerned with too blunt usage of race in government programs while leaving open the legitimacy of some usage. This has led to people wondering when he would find -- ala Goldilocks and the Three Bears -- a policy that is "just right" in his view.  The second Fisher v. Texas case was such as case apparently, Kennedy accepting that if the evidence was strong enough and race was only used as a partial factor that it would be legitimate. Again, I understand the logic of this up to a point but at some point as well it results in phony business like "ten percent plans" that work in large part because of racially discriminated school districts.  A set number of seats does seem blatant, but what about some sort of range?  Policy requires some sort of benchmarks.

The Oyez.com page provides a remarkable hour long opinion announcement with Powell, Stevens, Brennan, Blackmun and (out of order) Marshall providing a summary of their opinions.  One thing the opinions argue is that alternatives are not enough. Some do argue that class based systems might be better. And, like Sandy Levinson argues in his book Wrestling with Diversity, we do need to look beyond race here. But, like Blackmun highlights, race in particular is a problem.  We see this now with the concern given to the opioid epidemic, a more white disease than the crack epidemic. A general approach to drugs is appropriate but to ignore the race aspects is a fraudulent policy.  Same here.


* I skipped it because Randy Barnett isn't exactly an ideal guest (have issues with Neal Katyal, but more so Barnett as applied to his expertise above and beyond any number of people on this issue).  Hope they survived without citing one of my tweets.

** In the Stevens' dissent referenced above, involving a later case, he respected Marshall's eloquent discussion, but in effect said that any relief to blacks (called "Negroes" then) could not be done by the sort of rough affirmative action or "set aside" system in place in those cases.  Given Stevens' reference to Nazi racial classification regimes, it is somewhat hard to determine how we would find the suitable class here though, perhaps per some sort of "reparations" regime or something. 

Tuesday, May 15, 2018


Very good movie especially the two Rachels. Rachel McAdams had a sexual awakening in The Notebook and she has that sort of moment (both in a fashion is a matter of her feeling "finally!" if in different ways) here. Very raw film in various ways, including the actresses lack of makeup. The director was also behind A Fantastic Woman; this one is also fantastic but not just the lead[s]. Film doesn't demonize the conservative religious believers either.

SCOTUS Watch: Betting Edition

Oral arguments are over and we are getting to crunch time regarding Supreme Court opinions though they seem to be a bit behind schedule. A handful of opinions were handed down yesterday with the most notable involving sports betting. Others are somewhat interesting (e.g., privacy of those who borrow rental cars), but ultimately are narrow in scope.

As seen on the SCOTUSBlog case page, federalism precedent does not compel the suggestion that the law is unconstitutional. But, it seemed obvious to the majority (Kagan went along; three justices thought the law could be saved by cutting off the "bad" part). Net, sports betting is opened though in theory Congress could pass a new law advancing the same end. The result seems ideal to some liberals since it might restrain Trump actions but in the future it might hurt when sane people are in power. So watch out there.

Monday, May 14, 2018

Harry and Meghan

Vanessa Rumbles, previous producer of The Stephanie Miller Show, tweeted that she enjoyed the Lifetime movie. I overall liked it too, especially the Meghan Merkle [who showed her spunk and media savvy at 11] performance. She also had a blog. The Queen approved ... of the marriage. It is a nice, feel good story. Real life yet. The Hallmark version would have a non-actress marrying a prince; at least, one non-celebrity.

And Also: Finally found a good DVD, Their Finest, which tells the story of a British Ministry of Information film team making a morale-boosting film about the Dunkirk evacuation during the Battle of Britain and the London Blitz. Gemma Arterton is the lead and she's great.

Sunday, May 13, 2018

Saturday, May 12, 2018

"On Blue Slips, Republicans' Hypocrisy Is Showing"

Prof. Jost's remarks here, including regarding selectively caring about the issue away from the Senate too provide a good summary. ACS Blog has had defenses of the procedure while other progressives basically say Dems let Republicans play them. Given all the moving parts involved, don't know how harsh I'd be there. Me, I think it makes sense to divide the advice/consent function so that home senators have special responsibility. But, that requires good faith and limits. Republicans don't have/respect it/them. They are a rot on the two party system these days and basically make it not possible to have good things.

Review Time

I saw the Liftetime (stereotype of that sort of film present) The Truth About Jane (teenage lesbian) film years back (released 2000) and seeing part of it again, yeah, it's a tad heavy-handed. I read Walking Naked years back and read two more books by the author. Finding Grace deals with a college student caring for a brain damaged woman. Overall liked it better than Alex as Well (trans teen) but both have some charms. Think the problems of a newbie caring for Grace was skipped over too much. Also, re-read Beyond Belief. Gnosticism ultimately is best seen as a sort of metaphor regarding personal insight but it still is confusing. And, works like Gospel of Truth really need detailed notes. A sort of code key.

ETA: I liked the remake; the original The Blob was pretty fun overall too.

Monday, May 07, 2018

Landmark Cases: Gregg v. Georgia

Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made, and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens, and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.
 -- Justice White
Today it was a set of five cases that as a whole involved the upholding of the constitutionality of the death penalty.  A few years before, in Furman v. Georgia, a 5-4 Court merely held that the executions in that set of cases was unconstitutional. There was a belief by some, both in the majority and dissent, that it meant the end of the death penalty. But, in hindsight, that was dubious with Justice White (with a "it is applied too seldom to be rational" argument) -- a conservative leaning justice on criminal justice issues -- being the deciding vote.

Only two firmly said it was unconstitutional in all cases. McGautha v. California shortly before decided by a 6-3 vote that special rules and procedures were not necessary to guide juries determining if someone deserved the death penalty. This would "appear to be tasks which are beyond present human ability," a statement that might very well have a lot of truth to it.  That was decided as a matter of due process. Three justices in Furman in effect found the process too arbitrary for meet Eighth Amendment purposes, Justice Stewart comparing it to being struck by lightening. Justice Douglas emphasized the equal protection problems (including class).  Brennan/Marshall took the complete route.

Justice Powell had the lead dissent and basically said that the death penalty was assumed to be constitutional up until then, so what changed? Justice Blackmun provided a personal statement that stated he was against it morally but constitutionally, it's too soon to deem it illicit. Rehnquist emphasized that it should be left to the political processes, given it is not a clear case for being unconstitutionality. Burger went the "if I was a legislator" route without being quite as emotional about it. Justice Blackmun figured that by the mid-1990s that it was time.

A few random cases aside, the starting point of the modern death penalty process in the Supreme Court is often seen as a brief dissent largely a product of Alan Dershowitz that originally was a much longer effort. As is, it focused on death for rape and non-homicide offenses in general. Three justices joined the dissent and it was a red flag that the justices were interested. Soon, executions came to a halt until the matter was settled. The person -- as is often the case -- lost the battle, but won the war. He was not executed and I found note of him into the 1990s at least. 

Basically, the death penalty is a matter of "how much justice"?  Justice White is correct the "mistakes will be made" in all criminal justice systems. The question really here how much are you willing to accept here, especially when life is involved. The net result of these cases is that the death penalty process was standardized. A book co-written by one of the guests argued that the net result there was not much less arbitrariness, but people were/are more likely to believe it is more fair.  I would think that it was of some help (at least to those like those under eighteen that now are not executed at all), but I surely do not know writ large.

The plurality said that the Eighth Amendment at least required standards and that each individual needed to be judged; no mandatory death penalty. This resulted in a split of the cases involved. Four (including Blackmun who just cited his Furman opinion) though the standards were okay and so were the mandatory punishments that states passed to answer the arbitrary problem. Overall, after Furman, the states showed a basic wish for a death penalty.  Justice Marshall argued they weren't really aware of all the facts. If they were, they would agree with him the death penalty was excessive and cruel and unusual overall.  Deterrence wasn't shown and other means were available to advance retribution. Brennan focused on dignity.

At the end, Justice Blackmun said he would no longer "tinker with the machinery of death," and other justices (including Powell after he left the Court) in effect agreed with him one way or the other.  But, the death penalty continued, including one last week.  To me, a big issue is that it seems an arbitrary few are executed. Of course, there are various other problems with the system and individual cases.  This includes problem with the procedure itself, nitrogen gas not likely to "solve" that any more than past attempts to make things more humane.  The defendants here had various fates, including being released, the only one being killed is the lead one -- he died in a bar fight after escaping from prison right before his scheduled execution.

Personally, I think Justice Blackmun was correct to believe back in the beginning that the death penalty wasn't per se unconstitutional in the early 1970s.  But, I think the basic ruling in Gregg v. Georgia and the companion cases was appropriate.  Taking all the constitutional interests (due process, equality, cruel and unusual, republican government etc.) as well as good public policy, I would have opposed the death penalty.  Murder in prison and other special cases would raise less opposition though states and nations somehow handle those too without a death penalty.  And, a case by case, issue by issue, state and federal, approach over the decades would be broader in scope. Eventually, especially in courts only applicable to a particular state, experience would make a broader constitutional claim stronger.  Tinker tinker.

I am not really sold on the Justice Brennan dignity approach as to an execution treating an inmate as a "non-human." Why so?  We sacrifice people in wars without necessarily robbing them of dignity. Well, at least in theory.  That might be a stronger case -- in practice, the system robs people, including those who carry it out, of dignity.  Blackmun argued that in theory but not in practice the system was valid. I think that is a strong argument.  It is deprivation of life with due process.* The Fifth and Fourteenth Amendment are limits, not mere grants to execute.

The death penalty cases argued "death is different" and in certain ways warrants extra protections. This seems obvious though the crime as well is different.  Ultimately, we do particularly honor life in this country, and the good and necessity of executing a few murderers via a flawed system is very unclear to me. An expert in sentencing policy has noted he is concerned too much emphasis is given to executions, so many other people's needs given much less attention.  But, it's natural (and appropriate) to treat a life more carefully, and those who particularly fight the death penalty are more likely to care about the other groups as well.

Ultimately, I oppose the death penalty, including because people do not have the full guilt warranting an execution, which at any rate is done by a process that leaves a lot to be desired.


* It is often seen as obvious that the death penalty is constitutional since there are multiple provisions that speak of procedures to deprive life. But, again, the process has to be "due" and there are other provisions such as equal protection that also has to be followed. And, over time, especially with the development of prisons and procedures, capital punishment could become unconstitutional.  At least, in part.

I'm sympathetic at times when people think the courts, at least not in a one size fits all rule, should be careful before broadly deciding "cruel and unusual." These constitutional rules aren't just for the courts; they also are for the "political branches" when setting up policy. Also, at times, a case is basically a matter of first principles.  The execution would be acceptable in a vacuum.

Note: I tried to flag this on Twitter, but the Landmark Cases website still leaves out a key word when quoting Marshall's dissent: "any individual concerned about conforming his conduct to what society says is 'right' would fail to realize that murder is 'wrong' if the penalty were simply life imprisonment.”  The first part of the sentence: "It is inconceivable that."

Thursday, May 03, 2018

All the Boys Love Mandy Lane & Books

I saw copies of this movie for a $1 and checked it out at the library. First third, including the commentary track, is a well shot/performed teen film. Middle third ... not much happens. Skipped the last third with the most gore and reveal (which I knew beforehand). Overall, doesn't quite do it, but enough there to be worthwhile. Eat the Sky, Drink the Ocean is a good collection of sci fi/dystopia short stories from a feminist perspective, inspired by gender incidents in Australia/India, created by pairs working internationally. Alex as Well was okay.