Greg Roach's Berkshires Blog
Saturday, July 14, 2007
  Spoils of Victory
If you can get past the stilted language of people who read too many legal documents, Stanley Fish boils down the arguments in the recent SCOTUS school desegregation case better than anyone else:
The conflict between the accidents and practicalities of history and the principle that race consciousness should not drive government policy is restaged around the distinction between de jure and de facto segregation. The distinction, Roberts explains, is “between segregation by state action and racial imbalance caused by other factors.” The results of these other factors — individual choice, economic inequalities, historical biases — may be regrettable and include de facto segregation, but in Roberts’s view, they should not be remedied by law.

Why? Because history, not government did it, and what history has done, history, not legislation, should undo.

That’s all very nice on paper, declares Justice Stephen Breyer in dissent, but it simply ignores “the long history and moral vision” that stretches from the 14th Amendment to Brown and beyond — the vision of “true racial equality,” not as “a matter of legal principle but in terms of how we actually live.” In other words, my principle — true equality — is more principled than yours.

This move of Breyer’s shows that while I have framed the opposition as one between history and principle, the identification of principle is itself the work of history, and history can always go the other way. This is Stevens’s point when he slyly reminds Roberts of one of his own recent pronouncements: “history is written by the victors.”
I said it after the last abortion case and I'll say it again. The SCOTUS will be a huge factor in the 2008 Presidential election and will cost the GOP the election short of a major terrorist attack or other catastrophe. There will not be an openly conservative justice confirmed to the Supreme Court for at least a decade, if not much longer.

The far right should enjoy this 5 conservative justice block while it lasts. It will be the last remnants of the so-called "movement conservatives" to fall. But fall it will.
The court made the right decision in the Kentucky and Washington decisions-----Martin Luther King Jr would be proud----no racial preferences-- no quotas--- note that some of the plaintiffs were Black---and preferred to go to a neighborhood school---what is it about white leftists who always know what's best for people of another race---oh yes- I know-- your just sorry that you're not black-- white guilt it's called----
good decision--let the people decide--but noooooooooooooo you want government to do everything--make every decision in our lives--- and guess what- the government has spoken----you lose-----chbpod
Looks to me like another attempt by the conservative movement to hijack our legal system.
Let's move the clock back almost 50 years to 1863 to Lincoln's signing of the Emancipation Proclamation. How would the Robert's court decide an appeal concerning Lincoln's executive order? While replaced by amendments to the Constitution, the Proclamation remains (at least in my mind) as a cornerstone of our modern nation. Letting the people decide is a good idea. But like most good ideas it can be hijacked by those who wish to or are willing to abuse the power of government. Governments most solemn responsibility may be to protect the rights of all our people from those who would deny those rights to a few.

Not to put words in a certain History Prof's mouth, but he has already declared that the Emancipation Proclamation was and is an "illegal taking" of property in violation of the 5th Amendment due process clause because it came 15 years prior to the 14th Amendment.

Clark is to matters of race and ethnicity as George W Bush is to Elizabethan Literature.

As for the bigger argument made by Fish, the conservative-movement notion that courts can't allow remedies of historical wrongs, is absolutely turned on it's ear when ever the subject turns to the death penalty or sex.

Scalia famously wrote an opinion to the effect that there is no legal recourse (and no underlying systemic problem) for an innocent man facing execution as long as due process has been followed.

Gee, doesn't logic like that give great confidence in our black-robed overlords?
Please don't tie me into the death penalty argument-----point number one-- the Emancipation Proclamation was issued in September 1862-- to take effect on January 1- 1863--- I don't teach math--- but subtle calculations indicate that it was somewhat more then 50 years ago---the EP applied only to those states (or sections) of states then in rebellion against the Union-- over which Lincoln had no authority---it did not aplly to those slave states that remained loyal to the Union-- in otther words slavery was legal and an excutive proclamtion could not eradicate that and didn't---since slavery was legal and slaves were chattel property they could only be freed via the 5th amendment for the public "use" which at the time meant roads etc.-- it does not say public "good" which the abolition of slavery was- nor public" purpose" which the court in the recent Keelo decision applied---in any case without "just compensation" and there was none--Linclon ran rough shod over the Constitution---he had arrested critics and had the tried in military courts--- helllloooooooo Guantanamo-- and these were American citizens---he incarcerated prisoners of war in an undeclared war----and by the way-- not the due process clause--I don;t think I ever said that-- but the eminent domain clause is what is applicable-as in private property--oh yes the Emancipation Proclamation did not come 15 years prior to the 14th Amendment--sorry--what I am saying is that Abraham Lincoln was a worthless piece of shit--worse than George W. Bush--when it comes to abusing his office and trampling on the Constitution-- as to the Kentucky and Washington school cases-- good call---it takes a village to raise a child I have been told-- but that's becaise parental responsibility is often lacking---if black parents want their child to go to their neighborhood school--- let them--diversity means nothing---if you look at major universities today that have very aggressive-- and probably illegal race conscious admissions programns- what happens-- self-selected segregated dorms-- graduation exercizes-- majors and progams-- which basically -whites need not apply----is this what "diversity" was supposed to bring---Greg knows my public position on school choice and charter schools---and it based on the economic impact on the City's budget---personally --the option is there and it is you as a parent to do what -in your judgment- is best for your child---and that is what the plaintiffs in KY and WA were doing-- oh yes- and next time get your "facts" straight" or were these postings just another exercize in "who cares" facts are not important-----??? as far as +high-jacking" is concerned-- it was the Warren court that high-jacked the Constituion---and started to legislate- since the Congress would not--Brown??? best decision and worst at the same time--morally right---and constitutionally wrong---chbpod
Well now- I am to race and ethnicity as Dubya is to Elizbethen Literature---- OK-- hey WHITE MAN-- what do you know about race and ethnicity?? I'll answer that--- you are a racist suffering from the soft racism of lowered expectations-- you KNOW that minorites can't perfrom so instead of raising the bar and challeging them-- you lower the bar and kiss their ass on the way under---I want the bar equal---HELLO equal opportunity---Hello content of character---you are so pathetic in your groveling--you are to omeletes--what Bill Clinton is to fidelity--lest you freak out as is your wont--- it means you are both familiar with your calling- you operate from an ideological top with a hatred for George Bush--- and work backwards--- I operate from a bottom of common sense and work toward the top--different perspectives no doubt---and as far as race is concerned--- with all this affirmative action stuff -I have seen absolutely no progess---you're not willing to give the Iraq war more time-- it's failed- right? and yet you still hang on to the failed policies of over 40 years--and think that it will work--what a maroon--- chbpod
Clark, I'll let one of your previous comments on race stand on its own:

Pretty piss poor history---the 13th amendmnet wasn't declared until Dec 1865-- and Texas didn't ratify it until 1870--the Emancipation Proclamation was 1862-- and freed slaves only in those states still in a rebellion against the United States-- section of some of those states were emancipated due to Union military occupation---Juneteenth-- what a hoax---but we've got a black Governor-- went to Harvard----doesn't know shit about history--and is simply a pandering race baiter---watch it white folks you may become the illegals---we have Black history month and Women's history month and now we have I don;t know shit about history month---but I'm black and I'm Governor Month------what a shame----and to think I voted for him---last Black I ever vote for-(take that Obama--I don't vote race -I vote character and issues----and Patrick (how the hell did he get an Irish name?? no longer passes the smell test-at least Romney didn't push for a Month or even a day for Mormons---chbpod

(emphasis mine but the typos are all original - which deserves to be pointed out since 'pod makes a big deal out of the obvious accidental typo of "50" rather than "150" in another commenter's post.)

There are plenty more of your comments on race that I am sure I can dig up if you want to go down this road.
Hey it's your road------and those my be typos of text-- but numbers????--OK 14th amendment?? 15 years????---you go right ahead ---you see YOU are the racist here----not me--you are so blinded by hate---that you cannot be anything else but a racist----dig up-- go ahead dig up-----there's nothing to dig on this issue that I have said publically on my show---so you dig--- what the hell are you going to do with it---run to JBIII and bitch??? write an op-ed for the Transcript??? go ahead---I'll get equal time response---the quote that you have printed from one of my earlier posts---- I'll stand by--proud of it-------send it to the Governor---I really don't care---you are simply a drooler and a slobberer---so bound up with hate for who and what you are-and hate for George Bush--pretty damn pathetic----and your emphasis is fine with me-- I meant it---I'd rather shit in Patrick's hat than shake his hand---this racial and ethnic pandering has got to stop---by the way?? do you have a hat???? chbpod
Someone should tell chbpod that a drunk 13 year old is impersonating him in the comments section here.

Parents really should lock the liquor cabinet and track their kids' internet activities a little better than that. Shame on them.

Cap'n John
I've had that post before----I guess Cap'n John is just another Sissy who can't face reality----and yes I'd rather shit in Patrick's hat than shake his hand----is this solely over Juneteenth?---no--- it has a lot more to do with how he treated Danny Bosley--plus the other screw ups in his first 6 months----I had hoped for better--didn't get it----he's just another affirmative action Negro who speaks more articulately than Jesse and Al---Harvard education and he doesn't know the meaning of the "hoi poloi"---give me a break

Um, Clark. Your comments that are catching everyone's attention are not about Juneteenth. But please, keep digging. Eventually you will hit China.

And I might add that I've set a record for "unique visitors" today and almost all of the new IP addresses are local. Lot's of new readers!


It's funny in a sad sort of way, but your continuing comments are good for my ratings!
Well I did post on Southview's and Andy's blog that they might just want to drop by--anything I can do to help----my comments about Deval Patrick are not limited to Juneteenth-- which I pretty much covered on Andy's blog and my show a few weeks ago---I voted for Patrick----based on the content of his character as presented during the campaign---he was liberal enough for me not whack leftist-- but seemed to be a good solid liberal which I usually support---and the last thing I wanted to see was another Republican in the Governor's Office--but as posted above-re. Patrick- it was reprehensible the way he treated Dan---getting back to SCOTUS---I stand by my remarks-- call me old-fashioned- but I thought King's goal was a color blind society--and the SCOTUS decision in the Kentucky and Washington cases are a step in that direction----I got burned by Patrick---- I assumed he was above all that racial pandering---so much for my assumptions---I also thought he was a man of his word---had integrity--he isn't and doesn't----
so what-----I feel abused-----
I think I'll file for victimhood status---anyway unless you've been getting PM's how would you know that the readers aren't focused on Juneteenth--- you were the one that opened that up on this blog----and how do you know that your new readers don;t agree with me????

I'll just take a guess and say that the vast majority of readers would not sh*t in the Guv's hat or declare that they will never vote for another black person. I think it is safe to say that you are way off the reservation on those.

Whether these readers agree about Juneteenth, or "pandering", I could really care less, as long as they are paying attention.

I posted your entire Juneteenth comment so that I would not be accused of taking it out of context. It's there in all its glory so that people will have a reference point when they read your comments on issues of race.

This thread was originally about whether there is judicial and legislative redress for historical wrongs. If you care to comment on the larger idea, feel free.

Time for bed. Some of us actually work during the summer.
And some of you don't have a wife who has a fractured sternum from a auto accident 10 days ago---plus her MS-----so I tend to stay up a bit until I am sure she's asleep and doesn;t need assistance---I think I made my comments pretty clear on the Supreme Court---one point of agreement is that it will turn left again---and also it will turn right after it turns left--it does take more taim for the SCOTUS to change than the Congress or the Presidency-- always does----but as I said I am very disappointed with Patrick---and my self-esteem is suffering mightily because of my inability to make a good pick---
actually I don't know if Patrick wears a hat---anyway- your suppositions about who is reading and why and what their reactions are-- is all well and good----but it isn;t content wise any different from what i have said on my TV show--- and I think it reaches a wider audience than your blog---could be wrong about that too--glad I could spice it up a bit for you-- your Blog and Wes Flinn's???? everyone except me (and I am banned from Wes'_ is preaching to the choir---they're sort of Marxist mutual admiration societies------chbpod
Sorry to hear about you wife POD. As for the rest, its way out of my league.
Thanks da snoop---I had to take her to the ER last evening--- she was having trouble breathing from the pain----I think it was that her pain med hadn't kicked in- once it does she's usually OK- at least as far as breathing is concerned--it will take a while--I had open heart surgery 15 years ago-- and the don't frcture your sternum- they crack it open---and even now I occasionally feel a twinge---thanks- chbpod
If the historical wrong to be corrected is racial separation in housing, then aren't school busing and assignment by race a rather tangential, weak, and even counterproductive "solution" to the problem?

This "solution" is defeated by, and a cause of, the very white flight which causes the housing segregation which it is supposed to ameliorate or counter.

If Constitutional guarantees to treat different races the same can (or must) be secondary to social engineering goals such as racial integration, then why doesn't the government use the power of eminent domain to buy up the houses of whites in white neighborhoods (and blacks in black neighborhoods) and then sell them to the "opposite" race?

The answer of course is that school-based methods are instead used because they are cheaper and inconvenience only children, who don't have the power to object strongly to being treated as chattel. So moving children has become the means by which adults pretend to ameliorate an historical problem, even though children are innocent of historical wrongdoing, and even though their movement is more likely to worsen than to improve the historical (housing) problem their movement is aimed to solve.
dwp-is a ok chbpod
If the historical wrong to be corrected is racial separation in housing,

Brown v Board was not about about housing. it was about de facto segregation in schools. In other districts, the case is not so clear cut. Seattle is where the demographic geography came into play. But in Louisville, the case was one of clear red-lining at the school level that the district was correcting.

Contrary to the seemingly obvious, "equal protection under the law" is a subjective standard that must be interpreted and re-interpreted to meet various tests. Housing is, in large part, a free market activity. Public education is not. The distinction is clear.

White flight is a whole other bag of nuts. Having grown up in Detroit during the greatest example of white flight in American history, I have some fairly strong feelings on the subject. I'll be happy to share over our next beer.
actually Brown was about de jure segregation not de facto--- rulings that included de facto came later--- as in the Boston school district---chbpod
It is primarily because housing and neighborhoods are racially segregated (which I think we agree cannot be undone by government without overly intrusive measures) that schools have continued to see the need to tell people that they cannot attend certain schools because of their race ("busing" in common parlance).

If busing proved helpful in education and in improving race relations and reducing segregation of neighborhoods, then arguably it would meet the compelling state need test to justify racial discrimination. But I think that busing has done little educationally, and has been heavily detrimental on the other two factors.

I do not expect a voter revolt against this decision or Republicans for this reason, although you never know how the case will be spun in the press or by politicians. Perhaps Roberts' "the way to stop racial discrimination is to stop racial discrimination" will be successfully sold as a new "segregation now, segregation tomorrow, segregation forever."
I plead nolo contendre to abusing legal Latin.

David - To get back to busing, the Seattle case doesn't fit your scenario. Seattle is a choice district where you can go to neighborhood school or apply to any other school in the district. As with any magnet-school formula, demand for some schools outstrips supply. Ethnic % "meaning" was used as a tie-breaker when pupil slots were limited. This wasn't about kids not being able to attend their local school. The plaintiffs in the case were funded and backed by the Evergreen Freedom Foundation.

But more germane to your point, I saw the effects of busing in Detroit when it was ordered in the '70s. Unlike south Boston, there was little violence, but there were a bunch of for-sale signs. I don't pretend that busing was not an accelerant to White Flight.

I suppose that racial disparities themselves, regardless of their relevance to these specific cases, will be the call to arms in November '08. The repudiation of Brown in Scalia's brief will certainly be exploited (I doubt it will be Robert's hairsplitting) to the Dem's advantage, as will the reproductive issues highlighted by the PBAbortion case. Kennedy's 'women don't know what they are doing' opinion is going to haunt the GOP.

Just watch. It won't happen in the primaries, but once the final two have been chosen, the Dem will use the Bush appointments to the SCOTUS as a sledgehammer against his/her opponent.
This comment has been removed by the author.
I will watch. SCOTUS appointments will come up, but this particular combined case probably not so much. Most people don't equate a ban on schools' using race to make assignments with a repudiation of Brown. And the Democratic nominee won't bring up this case except in front of selected core audiences, or in the broadest and most misleading terms, because it is a loser for them with swing voters.

In Seattle, despite the "tiebreaker" terminology used by the school system, race "is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor" in choosing students for schools seen as having too many whites or nonwhites, as Roberts pointed out.

Further, Seattle "employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns." While Seattle's busing was not nearly as massive or overt as that of, say, Boston in the 1970s, it is in fact the case that white-dominated schools were on the white side of town (ditto for nonwhite, of course) and so forcing children to attend a school to even out school racial composition did mean busing children who otherwise could go to a closer school. (Not that the use of a bus is the most pernicious aspect of assigning students by race, global warming notwithstanding.)
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