Sunday, August 24, 2014

Justice Ginsburg: America Has a 'Real Racial Problem'

U.S. Supreme Court Justice Ruth Bader Ginsburg. (photo: Matt Rourke/AP)
U.S. Supreme Court Justice Ruth Bader Ginsburg. 
(photo: Matt Rourke/AP)

By Ian Millhiser, ThinkProgress
23 August 14

he Supreme Court was “once a leader in the world” in combating racial discrimination, according to Justice Ruth Bader Ginsburg. “What’s amazing,” she added, “is how things have changed.”
Ginsburg, who was one of America’s top civil rights attorneys before President Carter appointed her to the federal bench in 1980, spoke at length with the National Law Journal‘s Marcia Coyle in an interview that was published Friday. In that interview, she lays out just how much the Court’s outlook on race has changed since she was arguing women’s equality cases before it in the 1970s.
In 1971, for example, President Nixon had begun to reshape the Supreme Court. As a presidential candidate and, later, as president, Nixon complained that the Supreme Court’s school desegregation decisions had intruded too far on local control of public schools. Yet, as Justice Ginsburg points out, Nixon’s hand-picked Chief Justice, Warren Burger, authored a unanimous Supreme Court decision recognizing what are known as “disparate impact” suits, which root out discrimination in employers with policies that disproportionately impact minorities.
Burger’s resolution of this case “was a very influential decision and it was picked up in England,” according to Ginsburg.
The Court’s present majority, by contrast, seems much more interested in using its power to thwart racial justice. In 2013, for example, the Supreme Court struck down a key prong of the Voting Rights Act, effectively ending a regime that required states with a history of racial voter discrimination to “preclear” new voting laws with officials in Washington before those laws went into effect. Writing for the Court, Chief Justice John Roberts justified this decision because he claimed that racism is no longer a big enough problem in the states covered by the Act, and thus the Voting Rights Act’s longstanding framework was outdated. Permitting the federal government to apply such a check against racially discriminatory voting laws was an “extraordinary departure from the traditional course of relations between the States and the Federal Government,” and it could no longer be allowed, according to Roberts, because “things have changed dramatically” in states with a long history of racism.
Two hours after Roberts claimed that racism was too minor a problem to justify leaving America’s most important voting rights law intact, Texas Attorney General Greg Abbott announced that Roberts’ decision would allow a gerrymandered map and a recently enacted voter ID to go into effect. Federal courts had previously blocked both the map and the voting restriction because of their negative impact on minority voters. Alabama made a similar announcement about its voter ID law the same day Roberts handed down his decision. Less than two months later, North Carolina Governor Pat McCrory (R) signed a comprehensive voter suppression law adopting many provisions that reduced minority turnout in other states.
Justice Ginsburg, for her part, warned that tossing out a key prong of the Voting Rights Act “when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
In what may become the most controversial part of her interview with Coyle, Ginsburg also suggests that public acceptance of gay Americans is eclipsing our ability to relate to each other across racial lines. “Once [gay] people began to say who they were,” Ginsburg noted, “you found that it was your next-door neighbor or it could be your child, and we found people we admired.” By contrast, according to Ginsburg, “[t]hat understanding still doesn’t exist with race; you still have separation of neighborhoods, where the races are not mixed. It’s the familiarity with people who are gay that still doesn’t exist for race and will remain that way for a long time as long as where we live remains divided.”
Regardless of whether Americans as a whole are falling behind on race even as we become more accepting of our gay neighbors, the phenomenon Ginsburg describes is certainly alive and well on her Court. One day after the Court tore down much of the Voting Rights Act, it struck down the anti-gay Defense of Marriage Act (DOMA). Justice Anthony Kennedy, who is solidly conservative on most issues that come before the Court, typically votes with the more liberal justices on gay rights issues. He was in that majority in both the Voting Rights Act case and the marriage equality case.
So one possible explanation for this disparity between the Court’s gay rights cases and its racial justice cases is that Justice Kennedy controls the balance of power on both issues, and he is a conservative on race and a relative liberal on gay rights. At a recent conference, however, a member of the legal team that successfully argued that the Court should strike down DOMA offered a different theory for this disparity — a theory that closely resembles Justice Ginsburg’s analysis. According to Pam Karlan, a Stanford law professor who now serves as the Justice Department’s top voting rights attorney, “very few upper middle class people wake up to discover that their children are poor. Very few citizens wake up to discover that their children are undocumented. Very few white people wake up to discover that their child is black,” but even the most staunchly anti-gay parent can wake up to a phone call from their child telling them that he or she is gay.
 

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+47 # suzyskier 2014-08-23 19:51
It is really shocking how racist this country is. I had some much hope back in the sixties and seventies and now it seems all lost. I just don't understand why some many Americans are racists. It is shameful.
 
 
+33 # Radscal 2014-08-23 21:08
I think race has been a tool in the "divide and rule" strategy of the economic elite since the dawn of civilization.

Here's an anecdote. When I started to awaken to racism, I was surprised that so many Irish-Americans were racists. After all, they'd been subjugated by the English for centuries; many of the tactics used by the English colonizers had been practiced on the Irish.

Then I read a "slave narrative" (oral histories from slaves written down to preserve their stories) in which a slave had been leased out to a shipyard in Maryland. It was common for field slaves to be rented out when they weren't needed on the plantation.

The job was to unload barges filled with heavy bags of grain. He noticed that all the people on the barges tossing the bags were slaves, but all the people on the dock, dodging the bags and then loading them onto wagons were Irishmen.

He asked the overseer why that was and was told:
"It's too dangerous on the docks for a slave." You see, if a slave was injured or killed, the people who leased them would have to pay the owner for damaged or lost "property."

"But if an Irishman gets killed, we just hire a new Irishman."

Working class white people (and Irish were not even counted as "white" in the Census until 1910) have been pitted against blacks since Bacon's Rebellion of 1676. No matter how poorly a white laborer was paid or treated, he or she always thought, "well, at least I'm not black."
 
 
+11 # mim 2014-08-23 21:23
Not doubting that there's been a lot of racism among Irish Americans, but how does the anecdote demonstrate that? Seems to me it illustrates the odd paradox of slavery, in which an Irishman (or later, a freedman) was valued less than a slave, because a slave, even if not viewed as human, was at least valuable property.
 
 
+1 # NAVYVET 2014-08-24 07:07
My redheaded grandma's maiden name was Hogan--an Irish name. I can imagine how her ancestors must have suffered, one reason why I fight for civil rights. Americans of Irish descent should! Jim Crow racism was invented in Ireland, beginning with the 12th century invasion demanded of England's king by 2 popes, to end heresy among the Irish (pockets of Celtic Christian faith). The Irish became respectably Catholic just in time to be persecuted again!

However, Irish complexions weren't as obvious as African ones, and the Irish could adopt English, Welsh, Scandinavian or Continental names and become "Honorary-Anyth ing-But-Irish." Which is why so many bear English names like Smith, Brown, Ford, Burke & Cooper; Norman-French ones like Joyce, Power, Butler, Cruise & patronymics in Fitz- (Fitzgerald, Fitzgibbon); Norse ones like Neill and Bergin, Flemish like Prendergast, and Breton like Cusack and Plunkett (from Plouquenet). It was safer for Irish to try to "pass"--and much harder for African Americans. Non-African names were not something dark-skinned people could use to better their lives.

The Irish, even with new names, were still 2nd class citizens. Intermarriage was forbidden (although it occurred) but seldom did anyone of even part-Irish descent win a lawsuit if challenged by an "authentic" "pure" Englishman, and the part-Irish were referred to in courts of law as "mere Irish". (Like "quadroons" and Native American "halfbreeds"?) Nasty nonsense.
 
 
0 # suzyskier 2014-08-24 07:13
I do think you are right about racism and Irish Americans. How well I remember the busing issue in South Boston back in the 70's and early 80's The look of raw hatred on the faces of the "Southies" sent chills down my spine. It was very ugly. Even some "Friends" at the time were pretty blatant. I remember going to a Lake with a neighbor and her children. The girls and the Mom would not go in the water because there were black children in the water! Disgusted, my kids went in and had a great time.
 
 
+18 # ritawalpoleague 2014-08-24 02:18
Yes, suzyskier, racism is truly shameful. We are all in this 'stewpot' together.

But, what is the opposite of shameful is Justice Ginsberg's opening up here. So needed, her strong dedication to civil rights for all. Kudos to her honor. And I say this with me being a woman with dual citizenship, Irish and U.S., and a longtime legal advocate for people of color.
 
 
+3 # NAVYVET 2014-08-24 06:15
Mim, It goes back to the First Robber Baron era (1880-1932). Resentful Democrats became even more entrenched in the white supremacist mind-set (Klan). The South, hitherto a skeptical part of the country with few churches, was swept over by schismatic "Southern" (i.e., Confederate) Baptists and Methodists, who promised a separate and unequal life on earth, whatever happened in heaven. Poorer Southerners were suckers for it. The Klan was encouraged by their ministers.

At the same time the Republican Psrty flipflopped from abolitionist Left to rigidly Right, cozying up to the money of the steel-railroad- coal-and new oil oligarchy. They needed the Dixiecrat votes and pulled troops out of the South, ending the guarantees that enabled black voting & political participation. Thus the U.S. slid into the slime of the First Jim Crow era.

Both parties also had Left wings in those days--but they never won the Presidency. In the North, some city Democrats (those who weren't in jail for corruption and a few who were) supported the working class, and some rural Dems led by Wm Jennings Bryan championed small farmers--which automatically included bank reforms--but farmers were by no means friendly to former slaves. Read about the Populists--and Wilson's administration. The Republican Left spun off the Progressive Party, with a few hypocrites like T.R. but also some who echoed Socialism, peace & civil rights like the LaFollette brothers. Now we are in another phase of this LONG struggle!
 
 
+14 # ChapRL 2014-08-23 20:13
Carter appointed no one to the Supreme Court. it was Clinton in '93 or so.
 
 
+2 # mim 2014-08-23 21:29
That's exactly correct, ChapRL. Ian Millhiser, I hope you're reading these comments.

The first woman on the U.S. Supreme Court was nominated by Carter's successor Ronald Reagan.
 
 
+7 # California Neal 2014-08-23 22:26
Clinton appointed Ginsburg in June 1993 & she was confirmed in August 1993.
 
 
+13 # fango 2014-08-24 01:10
The author wrote that Carter appointed her to the federal bench. That is not quite the same thing as the Supreme Court, is it?
 
 
-64 # egbegb 2014-08-23 20:23
"disparate impact" is roughly equivalent to the 7-2 Dred Scott. Justice Ginsburg hates the US Constitution, doesn't understand it and should resign. Here are her thoughts on the US Constitution: http://www.slate.com/blogs/weigel/2012/02/03/ruth_bader_ginsburg_makes_banal_point_destroys_the_republic.html
 
 
+21 # chomper2 2014-08-23 21:15
eg, just like the folks at Slate, where you dug up this link, your ideology has your brain in a lock box, where it is of no use to you whatsoever. Both you and Slate will twist anything around to make it fit what you already "know," so that you can lie your way out of the cognitive dissonance you would otherwise have to live with. For shame.
 
 
+18 # Thomas Martin 2014-08-23 22:07
Thank you Justice Ginsburg, you’ve given us some faith in our Supreme Court, even though it’s in a minority of you! … As wise as our country’s Founding Fathers were in establishing our government, the success of their plan depended on having majorities in both Congress and the Supreme Court, as well as a President, who represented the will of the people and at the same time stood up for individual rights and the rights of minorities. Well, our current Supreme Court majority “supremely” fails in implementing the hopes and expectations of our Founding Fathers! And, for all our Founding Fathers’ efforts in implementing “checks and balances” among our three branches of our government, Judges, once appointed for life, are free from controls from the Executive Branch, and furthermore, can only be impeached individually by the Legislative Branch. Only one Supreme Court Justice has ever been impeached, Samuel Chase in 1804 by the House of Representatives , and he was acquited by the Senate in 1805 … So, we’re stuck with this 5-to4 majority of nincompoops, or probably worse (ie, criminals) in our Supreme Court – Our Supreme Court!!! Our Founding Fathers didn’t anticipate that such an incompetent (or traitorous) group of yahoos could steal our Constitution from us. So what to do?
 
 
+22 # California Neal 2014-08-23 22:21
Ruth Bader Ginsburg is a bright light on a majority Republican ideologue Supreme Court. We've fallen far since moderate Republican Chief Justice Earl Warren led a 9-0 Supreme Court in Brown v. Board of Ed., the school integration case. Many of us progressives believe it is essential to elect Democratic Presidents because Supreme Court Justices often shape the law & public policies for decades.

The current Supreme Court majority "elected" George W. Bush, let corporations & very wealthy individuals pour billions into elections without identifying themselves, & struck down parts of the Voting Rights Act: all decisions that had more to do with Republican power than law, facts or justice. Federal district & appellate judges also serve for life.

Ferguson, MO has awakened many people who didn't realize how bad things are between largely white, overly militarized police forces & largely minority communities. Did you know about the 2 white cops who unnecessarily fired 9 times at a mentally disturbed black man (after his mother's funeral), killing him, 4 miles from Ferguson in St, Louis? This happened after the Ferguson killing, but hasn't had mainstream media coverage. The cops never tried to talk him down. They knew who he was. Their story was he was coming at them in a threatening fashion with a knife raised. A video taken by a local man shows his arms were at his side, he was saying "Shoot me," & he wasn't that close to them yet or moving fast. They could have Tazed him.
 
 
+3 # California Neal 2014-08-23 22:29
I meant Tased.
 
 
+3 # hydroweb 2014-08-23 22:39
Every evening on the CBS/NBC/ABC news there is an uplifting story about a black person or family. Racism is so deeply ingrained we take no notice of it any more!
 
 
+21 # Paul Scott 2014-08-23 22:56
Racism is right where it has always been, in this nation, right in the front row. The media makes believe that we have no problem then all hell breaks loose.
 
 
-3 # Anonymot 2014-08-24 04:23
It's not news, but it's still fascinating to note that from the ghetto to Ginsburg there is a failure to understand the basics of race.

Let me start by saying I'm white , but I have a black twin. I'm an American who's lived all over, including 3 years in Africa.

America's most profound trouble is it's difficulty in understanding Others. I can only touch the surface here. Forget the word "race", we are speaking about the "Other".

Part of the nature of most animals is a fear of an animal unlike "me". It’s genetic & profound. Humans have refined and expanded that from "look like me" to "think/act like me" via our species” brain development. You don't need a Harvard ° to grasp that. You & I & Justice Ginsburg believe that progress is rising above our nature in America. She & you are shocked when events prove we have not. Why?

Americans think we can evolve through legislation. We cannot. Evolution, animal or social, is a very slow process of progress by natural adaptation not by voting, "Hey, yeah, let's do that!" Let's change our feather colors, let's develop longer necks, we don't need all that melanin in our skin since there's no sun up here, let's go white.” That’s not how Life works.

Education may slowly change local social things, but profound, genetic, behavioral issues can’t be legislated away. That’s wishful thinking. Basically, we need to learn our limits and work within them. Otherwise we’re just moving hot air.
 
 
+5 # Citizen Mike 2014-08-24 05:05
The problem we see today traces back to the premature end of Reconstruction after the Civil War. The southern states were returned to The Union and given their autonomy too quickly. The Reconstruction should have lasted for at least a generation to purge racism from our culture in genuinely effective terms.

It may have been a mistake to allow the secessionist states to return to The Union at all. We would not be in this present situation if those former states remained as Territories run by governors appointed by Washington.

What we see today in my opinion is that the Racist Believers (and Racism is a belief system, albeit a nonsensical one) Just dug in after the Civil Rights Act of 1964 and waited for it to "blow over."

Now it has "blown over" with the recent scrapping of the Voting Rights Act. Likewise, the Racist Believers are biding their time and stalling waiting for our first Black President to go away.
 
 
+1 # Anonymot 2014-08-24 06:58
First Black, First woman, like it's a computer game. Obama may not even have a voice in the matter:

http://readersupportednews.org/opinion2/277-75/22216-a-shadow-government-controls

Read it, it's major.
 
 
-6 # moafu@yahoo.com 2014-08-24 06:12
At this stage in her life, Ruth should be thinking about what she will say to the Almighty Judge when she has to give an account for HER life.

Racism goes both ways ! Dems put forward an unqualified Black person as President.....n ot a woman, and not a qualified male. Racism.

USA is paying an awful price just for being able to say we had the 'first black president'.

America has far greater threats to its existence than racism and anti-gay smoke screens. This 'first black president' lets radical Islam embarrass him in the boxing ring of diplomacy -- He doesn't even try to deflect the punches.
 
 
+7 # walt 2014-08-24 06:36
A huge part of the problem was the Supreme Court giving the 2000 election to George W. Bush over Vice President Al Gore. That decision has cost the USA more than we can even imagine. It brought us more right wing SCOTUS justices, wars, torture, secret prisons, tax breaks for the rich, outsourced jobs, a housing market collapse, a Wall Street and banking collapse, and more. The racism Ginsburg speaks of is just one part of a huge problem for the USA and it's all part of the GOP!
 
 
0 # fredboy 2014-08-24 07:13
Duh...
Yes, we once led the world in racial awareness and justice.
Now we are more reflective of apartheid South Africa, with jack booted police and organized, politicized racial hatred.

What's missing: A combination of positive leadership and good people.
 
 
0 # NAVYVET 2014-08-24 07:34
Excellent analysis, Mike. IT ENDED WAY TOO SOON! The South began that war out of sheer stupidity, ignorance & arrogance, and lost it for the same reasons. No amnesty should EVER have been granted military traitors like Lee and his other generals, and they should have brooded in jail (up North) till the end of their lives, and if they persisted in their silly states' rights arguments (as if our Constitution were merely the Articles of Confederation!) they should not been allowed writing paper for self-justificat ion. As a military veteran I recognize their lifelong obligation to their oath of office, to support the Constitution, and their criminal choice is obvious. The only one who recognized his crimes and admitted them publicly was General James ("Dutch") Longstreet, who freed his slaves before joining the Confederate Army. Nobody else did that. After going public, Longstreet was hounded out of his home state of Mississippi and had to move North. The rest of the generals stayed sullen, self-justifying & mistakenly resentful the rest of their lives, and passed that on.

I know about the white South. I'm a paleface redheaded white, raised in the South. It's good place for one thing--to escape from. At 78, I live by choice in a black neighborhood in a big Northern rustbelt city, and my black friends here are heads and shoulders above the white bigots of the South--both morally AND intellectually.
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