Supreme Court Watch: Summer Musings

The summer recess will not be totally without Supreme Court activity. Nonetheless, we will have a limited amount of stuff to report. It will also be a chance to consider what they did and think about other issues. 

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The Senate Democrats have promised to deal with Supreme Court ethics in some fashion.  I don't know what will come of that but it's something that is the issue of the moment.  Senator Richard Blumenthal, a member of the U.S. Senate Judiciary Committee is supporting an inspector general for the Supreme Court.  

I think this is on the right path.  We can not just trust the Supreme Court to self-regulate, including by passing a binding ethics policy that they again basically determine themselves.  

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The New York Times has moments where people groan and lash out. There is a "New York Times Pitchbot" that is a satire on their "hot takes."  Still, it has some good coverage (at times, the same people who lash out cite such coverage) and good op-ed columnists.  (And some bad ones.  I see David Brooks is a Mets fan.)   Jamelle Bouie is one of the good ones.

He has an op-ed reminding people of the limits of Justice John Marshall Harlan's Plessy v. Ferguson dissent.  He is (up to a point, correctly) seen as a hero, including for his "no caste" comments.  Still.  There is a lot to criticize.  The op-ed, for instance, doesn't even go into his anti-Asian comments (he was one of two dissenters to a birthright citizenship case involving an Asian American born of foreign-born parents).  

The concern is more his general acceptance of white supremacy.  This is not too surprising for a former slave owner.   Consider reading the whole dissent.  It's worthwhile, including how he brings in republican values.  Here's one of the less benign aspects:

"The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power,” Harlan wrote. “So I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.” What follows are the words with which we are most familiar.

Justice Harlan accepted social inequality.  He went along without comment when the Supreme Court unanimously upheld a law that penalized interracial fornication with a higher penalty.  He surely didn't see anything wrong with miscegenation bans.  

And, when he (near the end of his term) dissented when the Court upheld a law requiring segregation in private universities, Harlan carefully didn't assume school segregation, in general, was unacceptable.  It would take a selective reading of Harlan to assume he would have supported Brown v. Board.  

Justice Harlan, as noted in the op-ed, granted social inequality.  He assumed it would be in place for all time.  We have a broader understanding of equality today.  All types of inequality and means to further it is abhorrent to us or should be.  This is part of the travesty of the affirmative action rulings.  The policy helped to address inequality.  

Yes, it was race-conscious.  As Sotomayor notes -- and the liberals seem ever more concerned to provide some history to explain themselves -- that is part of the deal.  Equal protection is the rule.  Not the fictional idea race will not be part of the equation when we consider policies.   

One more thing about Justice Harlan.  The op-ed speaks of the limits of his vision. Sure enough.  But, even that is not fully honored by his late supporters.  How about his dissent in the Civil Rights Cases?  Do conservatives honor that?  Not so much.  The majority is still good law.  Amazingly so.