Schuette v. BAMN: SCOTUS Sets Back Minority Rights 50 Years--At Least

The current Supreme Court of the United States (SCOTUS) has done more damage to minorities than anything else it has harmed during its scorched earth campaign. Its recent decision in Schuette v. BAMN continues its assault on minority rights, turning back the clock to the time before Brown v. Board of Education.

In Schuette, the conservative majority of the court ruled that the electorate of Michigan had a right to stop preferential treatment for African Americans in college admissions. The Justices ruled that letting more minority students into college is harmful to the majority and they put an end to it, not just in Michigan, but everywhere else, since SCOTUS rulings are binding in all states. This ruling reversed SCOTUS rulings in Bakke (1978) and Grutter (1996). In both those cases, SCOTUS upheld the right of admissions officers to use race as one factor in making decisions about who would or would not be admitted to a college or university. Now, the only way to give race-based preference would be to pass a state-wide initiative. In her dissenting opinion, Justice Sotomayor notes that placing such an initiative on the ballot would be extremely expensive and, more to the point, it has never been successful.

The Justices knew exactly what they were doing because they had done it before, when they ruled that California's populace had a right to stop race-based admissions by sustaining California's intolerance initiative, Proposition 209, in 1996. Affirmative action programs in California's colleges had made getting a quality education easier for minorities during the decades prior to Prop. 209. Afterwards, according to Sotomayor's dissent, minority admissions plunged from 30% in 1995 to 13% in 2006.

Since the conservative Justices knew what had happened in California, they knew what would happen in Michigan. State-supported institutions that are supposed to support the aspirations of all the people stopped admitting minorities. Michigan's Law schools once again became the almost exclusive prerogative of the white and wealthy. Minority populations would find it far more difficult to find lawyers or physicians of their own kind, or even any white or Asian physicians who were willing to practice in minority communities. But the conservative Justices approved that result. They explained that they were protecting the rights of the white majority, who, Sotomayor pointed out, needed no protection. Though the conservative Justices claim that they are not racist, the results of their decision, in this case and in many others--more all the time--are exactly the same as if they were racist down to their nylon socks and black wing-tips.

Whence comes this vehemence? Why are Scalia et al. so adamant that African Americans achieving success should be prevented at all costs? Scalia and his friends claim to be following the intentions of the Framers, the 18th Century politicians who wrote the Constitution and turned it into law. But their motives go much deeper than that. They intend to preserve the social order as it existed in 1789, with a wealthy minority in charge of the government and a disenfranchised majority. The Constitution holds the seeds for such oppression, since it permits a minority to thwart the will of the majority, with two houses of Congress, with a tiny but powerful Supreme Court, with presidential veto power that can only be overridden by two thirds of both House and Senate. The Framers wanted those few who were then in power to remain in power forever.

Times change. Ideas are abandoned. Slavery was abolished. Senators are elected by direct vote. But the Supreme Court is struggling mightily to turn back the clock and freeze time and institutions in one and the same moment.

A government that cannot change with the times is a government that cannot last. The pace of change is so fast now that our government will be forced to change faster to keep up. Time is inexorable. Gentlemen of the Supreme Court, your time has past.

Justice Kagan Schools Conservative Court Cadre on Gun Control

We have all watched the Supreme Court over the past 10 years, since the appointment of John Roberts as Chief Justice, march in lockstep. Four conservative Justices with but a single idea, to make sure liberal politicians and presidents can't interpret the law to benefit the least powerful among us. So, in judgment after judgment, these four Justices try to send the country back to the nineteenth century.

We are all waiting for a sea change here. We will take any rational decision as a sign that the SCOTUS has seen the light and will soon be giving up its fight to hold back the future. Abramski v. US is just such a decision.

Justice Kagan wrote the opinion and delivered some smarting comments on the minority opinion.

Writing for the conservative minority, Justice Scalia serves up yet another of the ridiculous opinions that we have become accustomed to. Scalia is the designated obfuscator of the group. His style of argument is the same as the sophists, who Socrates said, made the worse argument appear better. In brief, he decides his verdict before giving reasons for his decisions, then argues to reinforce his prejudice.

Here, in his dissenting opinion, Scalia offers up some truly choice nonsense. For instance, he argues that the court should accept the opinion of the bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) as to how the law should be interpreted. He says we should not accept their opinion today, for they agree with Justice Kagan today, but we should take their opinion as of 1968, when they agreed with Scalia. Scalia is well-known for his historicism, frequently discussing what the founding fathers meant when writing the Constitution. In this case, he goes to an extreme, suggesting that the ATF ruling is correct because the ATF understood the intention of Congress when writing the law.

Kagan replies to this obvious nonsense by citing one of Scalia's own opinions, in which he wrote,

we have never thought that the interpretation of those [administrative agencies] charged with prosecuting criminal statutes is entitled to deference.

Another justice than Scalia might be embarrassed by having his own words thrown back in his face, but Scalia knows exactly what he is, namely someone who will use any argument that serves his purpose without concerning himself with whether it is true or false, or whether he has taken the opposite side of the argument at another time.

At another point in his dissent, Scalia says that the law distinguishes the actual purchaser of a firearm from the "deliveryman" or straw purchaser in the same way as if one of them had orange hair. Kagan chastises Scalia's attempt at humor as "wit gone wrong", because the law is not concerned with the color of a person's hair but with who is the actual purchaser of the firearm. The purpose of the law is to prevent people who are not eligible to purchase a gun from obtaining one. The whole purpose of the law would be defeated, says Kagan, if a person with a criminal record could hire a deliveryman with no record to purchase a firearm  and then take delivery. Deliverymen, says Kagan, are not hard to find. To which Scalia has no response.

Furthermore, adds Kagan, many recipients of straw purchases may themselves be eligible to buy firearms, but do not wish to use their own names. She cites a case,  US v Polk, 118 F. 3d, at 289, in which an eligible buyer used a straw purchaser to acquire an arsenal to use against the federal government. In Polk, the plot was thwarted by an informer. It would be pleasant to know that a similar plot could be thwarted by a weapons dealer obeying the law.

Scalia falls back on the "dictionary" method, in which a Justice looks up a word in the dictionary to decide what the meaning of the law is. The dictionary method is only of use as a last resort, since the legal system is based on published laws and court decisions, not the vagaries of dictionary compilers. Kagan once again rejects Scalia's attempt at obfuscation by saying the meaning of a law does not depend on the meaning of individual words, but on the laws "structure, history, and purpose."

Kagan's opinion is clear and concise. She explains the law and its purpose. She does not permit Scalia to spew any nonsense unchallenged. In future, this willingness to challenge a bully may give the other justices the courage to stand up to him as well.