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.
Showing posts with label minority rights. Show all posts
Showing posts with label minority rights. Show all posts
Wednesday, July 30, 2014
Sunday, February 23, 2014
Justice Sotomayor agrees with Justice Scalia on parental rights
This post concerns the case of Adoptive Couple v. Baby Girl decided by the U.S. Supreme Court (SCOTUS) in June 2013. The case reinforces the view of many that the Supreme Court is a bastion of white men where minorities and women count for little. Justice Sotomayor has quickly become an important spokesman for women, children, and minorities, as demonstrated in this case.
The baby girl in the case is the natural child of a member of an American Indian tribe, the Cherokee nation. SCOTUS got involved in this case because the father attempted to use provisions of a federal law, the Indian Child Welfare Act (1978) (the "Act") to gain custody of his daughter.
The opinion of the Court begins with a claim that the baby girl is classified as an "Indian" because she is 3/256 Cherokee. This statement is simply false. Baby girl is a citizen of the Cherokee nation because her father, Dusten Brown, is a citizen. The Cherokee nation does not ration citizenship on the basis of "blood quantum", but on derivation traced from an ancestor in the Dawes Rolls (1899-1906).
The male members of SCOTUS decided to determine citizenship in an entirely different, though not novel way, by the percentage of a person's blood that is Cherokee. The Cherokee themselves do not consider this important. The white settlers of America always considered this indication important, however. They referred to a person with only one Native American parent as a "half-breed", a term that soon became one of contempt, as if a person had chosen his own parents.
The classification of people by "divisions" of ancestry owes its origin to classification of African American slaves in pre-emancipation America. This classification made no sense then and the classification of Cherokees, officially recognized by this decision, makes no sense today.
SCOTUS apparently chose to declare that Baby Girl was not "really" Cherokee, since the Act was intended by congress to prevent precisely the sort of abuse from which this case arose, namely, the forced removal of a Native American child from its natural parents. Implicit in this decision is the belief that Native Americans are better off when deprived of any connection to their natural relatives and placed in good "white" families.
The three women members of SCOTUS disagreed with their male counterparts, led by Justice Sotomayor. The women (and Justice Scalia) determined that the government could not remove a child from its parent under the Act simply because the parent had never had custody of the child.
This decision is one more incident in the shameful history of white mistreatment of Native Americans. In response to this decision, the Cherokee Nation passed a law that natural children of Native Americans should be placed with their parents first, then with their Cherokee relatives in preference to any non-Cherokee adopters.
This action by the Cherokee Nation only reinforces the intent of the Act, however. Since SCOTUS managed, in this case, to ignore both the Act and the official position of the Cherokee Nation, it is highly unlikely that the present court would give more respect to Native American rights in any future rulings.
The baby girl in the case is the natural child of a member of an American Indian tribe, the Cherokee nation. SCOTUS got involved in this case because the father attempted to use provisions of a federal law, the Indian Child Welfare Act (1978) (the "Act") to gain custody of his daughter.
The opinion of the Court begins with a claim that the baby girl is classified as an "Indian" because she is 3/256 Cherokee. This statement is simply false. Baby girl is a citizen of the Cherokee nation because her father, Dusten Brown, is a citizen. The Cherokee nation does not ration citizenship on the basis of "blood quantum", but on derivation traced from an ancestor in the Dawes Rolls (1899-1906).
The male members of SCOTUS decided to determine citizenship in an entirely different, though not novel way, by the percentage of a person's blood that is Cherokee. The Cherokee themselves do not consider this important. The white settlers of America always considered this indication important, however. They referred to a person with only one Native American parent as a "half-breed", a term that soon became one of contempt, as if a person had chosen his own parents.
The classification of people by "divisions" of ancestry owes its origin to classification of African American slaves in pre-emancipation America. This classification made no sense then and the classification of Cherokees, officially recognized by this decision, makes no sense today.
SCOTUS apparently chose to declare that Baby Girl was not "really" Cherokee, since the Act was intended by congress to prevent precisely the sort of abuse from which this case arose, namely, the forced removal of a Native American child from its natural parents. Implicit in this decision is the belief that Native Americans are better off when deprived of any connection to their natural relatives and placed in good "white" families.
The three women members of SCOTUS disagreed with their male counterparts, led by Justice Sotomayor. The women (and Justice Scalia) determined that the government could not remove a child from its parent under the Act simply because the parent had never had custody of the child.
This decision is one more incident in the shameful history of white mistreatment of Native Americans. In response to this decision, the Cherokee Nation passed a law that natural children of Native Americans should be placed with their parents first, then with their Cherokee relatives in preference to any non-Cherokee adopters.
This action by the Cherokee Nation only reinforces the intent of the Act, however. Since SCOTUS managed, in this case, to ignore both the Act and the official position of the Cherokee Nation, it is highly unlikely that the present court would give more respect to Native American rights in any future rulings.
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