Update no.1121

 Update from the Sunland

No.1121

3.7.23 – 9.7.23

Blog version:  http://heartlandupdate.blogspot.com/

 

To all,

 

The follow-up news items:

-- A friend and occasional contributor to this humble forum sent along the following URL:

https://youtu.be/NPtBkw5uD-0

It is a link to the Lex Fridman podcast no.388 with Democrat presidential candidate Robert F. Kennedy, Jr. The Kennedy scion offers a number of opinions that I agree with and can support. However, it was his comments on the War in Ukraine [1050] that touched a nerve and instigated my response below.

I must say RFK Jr. is absolutely batsh*t crazy. Make friends with Putin! He is out of his freakin' mind. Putin and his far-right, hyper-nationalist supporters invaded several other independent sovereign nations based on a specious, disgusting premise of an 80-year grievance. Should we have made friends with Hitler, Al Capone, or Frank Costello? They are all f**king violent murderous criminals who violated an infinite number of laws of common decency and respect for other people.

I understand Kennedy’s sentiment--Rodney King's "Can't we all just get along." I wish King's (and Kennedy’s) idealism was achievable, but there are very bad men in this world, and some of those bad men eventually gain the power of the instruments of state. I desperately want to be friends with the Russian people. I have broken bread with more than a few Russians. I want to see the history in Russia. I want Russia to be a valued member of the league of peaceful nations. But that objective is not up to me and thankfully not RFK Jr. either. Putin and his cronies decided to kill Ukrainian civilians wholesale using the modern weapons of war. Putin must be defeated and prosecuted as Hitler would have been if he had not taken the coward's way out. Ukraine must be restored to its safe, secure, pre-2014 borders in peace and freedom, and must be healed and restored to prosperity. The right-wingers in Russia are a relic of a fading distant past. They belong in the dustbin of history.

Junior is wrong! We cannot standby an allow Putin’s hegemonic nationalism to subjugate neighboring countries because a bunch of right-wingers have a paranoid view of history. The Ukrainian people want to be free and independent, to make their own choices. If Russia is distrustful of the West’s motives and Ukraine’s aspirations, there are other ways to assuage their concerns.

 

I finally ground through the 237-page U.S. Supreme Court decision in the case of [Students for Fair Admissions, Inc. v. President and Fellows of Harvard College] or Students v. Harvard [600 U.S. ___ (2023); No. 20–1199]. Actually, a dual, parallel set of cases against Harvard College and the University of North Carolina, each institution having a markedly different past regarding segregation and discrimination. Chief Justice Roberts wrote for the 6-3 majority. He said, “Twenty years later {Grutter v. Bollinger [539 U.S. 306 (2003)]}, no end is in sight. ‘Harvard’s view about when [race-based admissions will end] doesn’t have a date on it.’” The majority decided that the time was up for affirmative action at universities. What Chief Justice Roberts failed to acknowledge at the outset is one other selection criteria at Harvard College is who one’s parents are, i.e., heritage (who the applicants’ parents are). Justice Sotomayor, writing for the dissent, observed, “Ignoring race will not equalize a society that is racially unequal.” She also clearly and accurately stated, “Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that ‘bedrock principles are founded . . . in the proclivities of individuals’ on this Court, not in the law, and it degrades ‘the integrity of our constitutional system of government.’ Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy.” In the lengthy concurrences and dissents, we find an intriguing contrast of opinions between those who wish to emphasize the negatives with affirmative action and those see only the positives. The whole ruling boils down to whether you believe sufficient corrective actions has been undertaken so that all citizens are equal under the law, and compensation is no longer required.

The importation of slave labor from Africa arguably began in 1619 and flourish in the Southern States of the fledgling nation. After the blood and carnage of the Civil War, Congress passed and We, the People, ratified the 14^thAmendment, the first section of which states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [9.July.1868]

Yet, an amendment to the U.S. Constitution was not good enough, not sufficient. Congress passed a series of laws that became known as the Reconstruction Acts in an effort to boost the newly freed former indentured citizens, for example, the Freedmen's Bureau Act [PL 39-200; 14 Stat. 173; 16.7.1866] [448] and the Civil Rights Act of 1866 [PL 39-031; 14 Stat. 27] [448, 535] to secure for all citizens the same civil rights as enjoyed by white citizens. President Andrew Johnson vetoed it because he decided the law “discriminat[ed] . . . in favor of the negro.” Congress passed the bill over the president’s veto, and it became law. There were many others. The U.S. Supreme Court found a path to reconcile the preferential new laws with the 14^th Amendment’s Equal Protection Clause. The former Confederate and newly re-integrated states found myriad imaginative ways to circumvent the Reconstruction Laws that were collectively referred to as the Black Codes. Then, the Supreme Court validated “separate but equal” in its infamous ruling—Plessy v. Ferguson[163 U.S. 537 (1896)] [537] affirming the “separate but equal” segregation practice as within the 14^th Amendment. From that ruling, the Jim Crow laws evolved that further calcified segregation, oppression, and discrimination against citizens with dark skin pigmentation. By 1950, the inevitable truth of the 14^th Amendment had begun to reemerge: seprate but equal was inherently not equal—Brown v. Board of Education [347 U.S. 483 (1954)]. From Brown came forced integration, mandatory school busing, and such. But even all that was not sufficient to achieve the ideal of all citizens are equal under the law. In 1964, Congress passed and President Johnson signed into law the Civil Rights Act of 1964 [PL 88-352; 78 Stat. 241], from which came government-mandated affirmative action—Executive Order 11246 and the central object of the current Court ruling.

Although Justice Thomas holds a rather cynical view of affirmative action, there is no debate that he is correct. The Constitution once amended in 1868 intended and sought equal treatment of all citizens . . . well, except women; that equality objective did not come until 1920. Unfortunately, that lofty proposition has yet to be realized 155 years later, and it is that blindness to history that colors and faults the Students ruling today. The 14^th Amendment recognizes the present and future, but it does not acknowledge the debt of the past. The challenge for all of us—society, communities, the law, and our politics—remains finding the balance between the ideals espoused in the 14^th Amendment and the correction and reconciliation of centuries of institutional abuse, segregation, and discrimination. Political and social conservatives seek to forget the past, e.g., banning Critical Race Theory (CRT) or the teaching of our children about the history of our nation—good, bad, and ugly. We do not get to say, Oopsy-Daisy, sorry about the 400 years of segregation, abuse, enslavement, and denigration your ancestors suffered. Let’s zero the slate and start over. We will pretend those centuries of broad general offense did not happen. Those centuries of abuse created and cultivated that diminishment into institutional discrimination that produced red-lining, de facto segregation, discriminatory profiling, et al.

I doubt and genuinely object to the stated notion that those universities, or any university, is using “race-based” admissions. Utilizing race as a criterion is not making it a primary or paramount factor. Taking the reasoning of the Court’s Students plurality, whatever gains toward equality for citizens with dark skin pigmentation that have been achieved in the last 30, 59, or 155 years are the only advancement they will benefit from with the government’s assistance. From here on out, citizens with dark skin pigmentation are on their own.

As perhaps a footnote or postscript, I truly enjoyed reading Justice Jackson’s collateral dissenting opinion in the Students case. I think I am going to like reading future opinions by her.

 

Next up for the following Update is the 1^st Amendment case—303 Creative v. Elenis.

 

Comments and contributions from Update no.1120:

Comment to the Blog:

“I don’t agree that the conservative Supreme Court Justices are only concerned with the law, although they make that claim. They are concerned with carrying out their patrons’ will and with controlling anyone different from them.

“I’ll note that in the case of 303 Creative v. Elenis, the plaintiff sued based on an imaginary request for a wedding page. Per my reading, ‘Stewart,’ the person allegedly asking her to make a web page for a gay couple has been married to a woman for 15 years, has the professional capacity to make his own page, and knew nothing of the case until recently. Oops, no legitimate standing exists for the case.”

My response to the Blog:

Happy Independence Day! Despite all our flaws and fractures, it is important to remember what occurred nearly a quarter of a millennia ago. We will do our part. Stay safe and enjoy.

First, perhaps, I simplified my comment too much. There are many factors that influence the justices. I cannot argue with your perspective and assessment as you are within the plausible range. I condemn the unethical conduct of Thomas & Alito, and I often strongly disagree with their judicial reasoning, but I also give them credit when they strike resonance. However, your words are a touch too cynical for my concurrence. Yet, as Justice Brandeis observed, “Sunlight is the best disinfectant.”

I am currently working on Students v. Harvard, which is quite long. I have already taken notes on Elenis for many reasons, including the one you cite. The paucity of standing popped out promptly, and I need to read their reasoning on that aspect. There are other elements of Elenis that deserve illumination. I am not sure I can get to Elenis this week, but my review of the ruling is coming.

 . . . Round two:

“Sunlight is indeed the best disinfectant. The Internet increases transparency, but I’m impatient (as usual) with the pace of actual change.

“As Robert Reich points out, standing has become an issue. If the person or group bringing the action isn’t harmed by the subject, they’re just one more opinionated party.”

 . . . my response to round two:

I am perhaps a tad more patient I suppose. These things have their way of working themselves out, just as we are now seeing indictments (plural) for Tiny three years after many of his crimes. I may be naïvely optimistic, but the day of him facing justice is moving inexorably closer by the day.

And Reich is precisely correct. The Elenis case is quite troubling for that reason alone. Yet, I need to read their reasoning and the details before rendering my opinion, FWIW. I am only 2/3s of the way through Students, and I have already noted that one side emphasizes the negative of affirmative action, while the other side highlights the positive. The truth is probably in the middle somewhere. I need to get through the dissenting opinions . . . hopefully, this week.

 . . . Round three:

“Crowds bother me, and I saw enough fireworks long ago. I spent the day outdoors on a bike trail and contemplating our national progress, failure, and regression.

“Nothing seems to break Tiny’s base. Certainly, the Democrats look very weak against him. That is dangerous. If he can be denied access to ‘megaphones,’ that might help but would have to happen soon.

“I’m not lawyer enough to analyze lengthy legal opinions/decisions. I merely read the Constitution and publicly available information, then point out any obvious issues with a given case.

“One could dispose of many arguments against affirmative action and similar remedies by focusing on social class rather than race. That would address almost all of those still suffering and would improve society more than race-based solutions.”

 . . . my response to round three:

I am not a crowd person either. I complete my daily exercise indoors. This year, it was my turn to read aloud the Declaration of Independence (to an audience of one) . . . to remember the genesis of the holiday. In times of contemporary struggle, it helps us keep things in perspective.

Unfortunately, I do not think anything is going to happen soon, although various judges are applying restraining orders on Tiny as his trial dates approach. The Special Counsel continues to work feverishly on additional ever more serious charges, but those will not be soon enough either. I think the only way to deny him “access to megaphones” is prison, and even then, he will attempt to use his lawyers to get messages out. In this instance, perhaps death is the only effective muzzle.

We each have our own paths to information and analysis. Yours is better than most IMHO. I am not a lawyer either. As I have read every word of the Declaration and Constitution, I feel compelled to read these judicial decisions from the bottom to top. I learn from them, but I also gain a lay impression of what supports the rulings. In most cases, I try to absorb other opinions, insights, and analyses in forming my opinion.

I am still working on the Students case (dissent now); I expect to finish this week. Affirmative Action, like many socio-political constructs, can be seen from many perspectives. In the Students case, the ideological motivations surface as well as the legal basis, but the bottom in this instance seems to be how far is far enough? What and where is the end state? That element will be a central theme of our discussions. Social class is another facet of the social factors that color our public discourse and conduct. The Students case is one of those rare events where I agree with Justice Thomas in his concurrence. The Constitution (as amended) does not countenance discrimination in any form or any direction. Whether we classify affirmative action as reverse discrimination is a valid point of debate.

 . . . Round four:

“My moral values don’t allow for wishing anyone dead, but I recognize that Tiny’s poor health habits could take him out to the benefit of society.

“The social class issues the USA claims not to have (‘created equal,’ right?) need to be addressed as much as the harm done to Black and Native American people. Maybe more. Even at universities that use affirmative action, most students’ families make too much money to receive Pell Grants. That’s about social class, not race.”

 . . . my response to round four:

I am with you, my friend. I do not wish anyone dead . . . including Putin, for that matter. I was only reflecting my opinion of what it may well take to silence [the person who shall no longer be named] {I suppose I should amend my chosen moniker for the man to “no longer deserves to be named”}.

Equally, you are, of course, quite correct; the social class issues reconciliation is a vital, key element in our maturation and advancement as a society and species. The hypocrisy of the wealthy (well, most of the wealthy) is staggering. Most want and in fact enjoy the benefits of their wealth without the responsibility of what that wealth has done to the rest of society. We cannot ignore the past and the social class matters. I have not yet finished the Students case reading, but it is clear the social conservative majority Supremes believe the time has come to terminate the helping hand we have offered to the underprivileged. I fundamentally disagree as I will soon state in my review of the Court’s ruling.

 

My very best wishes to all.  Take care of yourselves and each other.

Cheers,

Cap                  :-)