April 25, 2014

"Compare this reception of Sotomayor’s deeply personal dissent with how her colleagues talk about Thurgood Marshall’s time at the court..."

Dahlia Lithwick invites us into the world of comparative race consciousness. There are so many disparate points of comparison. Thurgood Marshall was a black man born in 1908. Sonia Sotomayor is a Hispanic woman born in 1954. And Lithwick is comparing written responses to a written judicial opinion and spoken reminiscences about private personal interactions with a colleague. But anyway, here are Lithwick's musings:
Maybe the outcry at Sotomayor’s reflections on why race and racism still matter is merely a function of her tone. Nobody likes to be told they are out of touch with reality, even if they work in a palace and surround themselves with silent, sock-footed clerks. Or maybe it was different when Marshall lectured them, or browbeat them into changing language in written opinions because he was a man. Or maybe they endured it because he was funny. Or maybe, and I suspect this is it, they could hear him because he was a part of the era that the majority of the current court wants to relegate to history: Marshall argued Brown. But Brown solved racism! 
There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?
Maybe Marshall was allowed to talk about race because Marshall lived in a time the current justices still acknowledge was an era of “real” racism. Which in their view ended with the passage of the Civil Rights Act. Or maybe Marshall was allowed to speak so pointedly and openly about the intersection of race, law and his own life, precisely because, as Justice White explained it, White and his colleagues were well aware of all that they “did not know due to the limitations of our experience.” But maybe the time of acknowledging that you don’t know as much as you thought you knew about race is over. Because, seemingly, and by popular acclaim, racism itself is over.
Where is this "popular acclaim"? Stressing the importance of "reality," Lithwick invents a cartoon picture of how other people think. The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse.

And Lithwick never even mentions Clarence Thomas, who would seem to offer a second basis for comparison. How have his colleagues received the things he's written that disrupted the way they wanted to think about race? To be fair, Clarence Thomas did not write an opinion in this new case Schuette v. Coalition to Defend Affirmative, Integration and Immigration and Fight for Equality by Any Means Necessary, which had 5 opinions, only one of which was a dissenting opinion. Thomas joined Justice Scalia's opinion, which deserves a separate post. I'm just calling attention to Thomas because Lithwick is ignoring him, even as she patronizes those who act like it's passé to acknowledge that you don’t know as much as you thought you knew about race. Those other people need to acknowledge that they don't know as much as they think, but the things not known surely don't include the things Clarence Thomas has been writingnotably in Grutter v. Bollinger, which begins with a passage from Frederick Douglass, who was born 90 years before Thurgood Marshall. 

44 comments:

Crazy Jane said...

"Lithwick invents a cartoon picture of how people think."

Exactly.

The Crack Emcee said...

"There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?"

Yes, your white conservative readers. They also think the one-and-only attempt by this government to fix 400 years of problems it caused was enough, because they failed. They also think blacks are "lazy" and they know more about our lives than they do, which is why they tell us their opinions of our lives so often.

They also want to touch our hair a lot,...

gerry said...

Don't MSM and other liberal talking heads disparge Justice Thomas, calling his opinions ignorant, stupid, fascist... They are such pleasant people!

Saint Croix said...

It was really depressing to learn in my adult life that Lincoln was a racist. And that private citizen Frederick Douglass was a way better man. Douglass was right, utterly right, completely right.

Where are the statues to Douglass? Why isn't he on our money?

It's scary when you realize that our government is always lifting up the people in the government. We put them on our money, we put them on statues, we name cities and towns after them.

You might start thinking that America is the government and the government is America.

Which is an appalling idea.

Anyway, Douglass had no power (other than his magnificent words). We should be reading Douglass, not Lincoln. Douglass who had the sharper intellect. Douglass who was right.

elkh1 said...

May be affirmative action has brought us the first black president, the most incompetent president; may be affirmative action has brought us an inferior jurist who ignores the Constitution?

Illuninati said...

"One can’t help but wonder what they thought about the tacit new agreement on the part of the Roberts majority that the best way to stop discrimination on the basis of race is to stop talking about discrimination on the basis of race."

The left is obsessed with race. That is probably their favorite topic of conversation since they have relabeled themselves "liberals" or "progressives" and have added racial struggle to Marx's class warfare as the engines driving history. The left has discovered the power of two fundamental human weaknesses - covetousness and tribalism. The reason the left is obsessed with race even more than class struggle is because they believe racial hatred will ensure their power in perpetuity. To this end, the left claims they are the people who to oppose racism while their actions lead to racial hatred. Blaming your enemies for your own evil behavior is another time tested human pathology in which the left excells.

Greg said...

LIthwick is simply following Harry Reid's lead with regard to Thomas.

Hagar said...

Thurgood Marshall's had a reputation for being a very good lawyer, but not much of a justice, I believe.

I think the Professor has pointed out before that the two jobs call for different personalities.

Drago said...

Crack: "Yes, your white conservative readers."

As with Lithwick, Crack also creates cartoon caricatures of how people think.

This is a very common tactic of people who are completely full of crap.

And always will be.

Drago said...

Crack: "They also think blacks are "lazy" and they know more about our lives than they do, which is why they tell us their opinions of our lives so often."

Another common trait of those who are full of crap is an utter and total lack of self-awareness.

virgil xenophon said...

The divide between Douglass' approach and that of the statist approach to the betterment of "the Negro" favored by Dubois is of long-standing and still with us. Typically, the left in general, and most indoctrinated blacks in particular, see Douglas, like his champion Thomas, as the "House Negro." And that is all one needs to know about the zeitgeist of the times and the Weltanschruung of the left racially-wise in this year of our Lord 2014.

virgil xenophon said...

Hagar@10:07am

Which is why being a lawyer is not a pre-condition for being appointed to the SCOTUS.

Strelnikov said...

If you're going to read Slate, you have to expect to encounter stupid shit. Like anything written by Dahlia Lithwick.

Illuninati said...

The Crack Emcee said...
""There's no reason to suspect that anyone on the Court thinks "Brown solved racism!" Does anyone anywhere think that?"

Yes, your white conservative readers."

No one is that dumb. Any conservative who reads Crack's posts will understand that racism is still as strong as ever.

who-knew said...

I think the problem is that Sotomayer, and others, think that the law can solve racism. It can't. The civil rights acts banned legally enforced racism. That is all the law can do. If you look at Sotomayer's "race matters" passage, you see a long list of bad things that no law can do anything about, let alone the particular law she was supposed to be evaluating. You don't have to think those things are good to know that there is no law that can make them go away.

Paul Zrimsek said...

So all this race-conscious stuff we've been doing for the past 60 years hasn't resulted in any progress. Which is why it's so important that we keep doing it.

Revenant said...

Of course racism isn't over. For example, despite laws explicitly forbidding it, most colleges that receive federal funding discriminate against white and Asian students on the basis of their race.

The Crack Emcee said...

Drago,

"Another common trait of those who are full of crap is an utter and total lack of self-awareness."

Yeah, like when Uncle Ray - a white guy - told you you're full of shit.

Didn't make a dent, did it?

See? You're right,...

Ralph Hyatt said...

Maybe Marshall's reasoning and arguments are superior to Sotomayer's? Maybe we are several decades removed from when Marshall was on the Supreme Court and conditions have changed? Nah, It is most likely because all the other justices are racist misogynists.

The Crack Emcee said...

virgil xenophon,

"Typically, the left in general, and most indoctrinated blacks in particular, see Douglas, like his champion Thomas, as the "House Negro." And that is all one needs to know about the zeitgeist of the times and the Weltanschruung of the left racially-wise in this year of our Lord 2014."

Please - a citation. I've never seen anything of the kind in my life,...

Dave Schumann said...

OK, that's it. I come here for the comments but I'm sick to death of Crack. If I wanted to read on, and on, and on, about how there's a dark conspiracy against him because of stuff that happened to other people and stuff other people said etc etc...well, I'd come here. But I don't.

Althouse was right to shut down the homophobia but the racism, I think, makes her feel secure. Hard to imagine what else it is.

Crack, I wonder if, right before you die someday, it'll occur to you that all the good and bad things that happened in your life came from you.

The Crack Emcee said...

If anybody here asks to touch my hair, I'll scream.

Is it racist that blacks never ask to touch white's hair? That we're not fascinated by it? Or black skin? (White girls are always going on about black skin,…) What's up with THAT?

It's a good thing blacks are racist, and not whites, or I'd be the one confused,...,...

n.n said...

An outstanding issue of Civil Rights Incorporated, and other opportunistic enterprises and individuals, is a prejudiced isolation, which misses principles for a self-serving agenda, thereby threatening to provoke a cycle of retributive and/or redistributive change.

Michael said...

Virgil X

Correct. One can measure the collapse of the culture from the moment the softer, gentler, Dubois way was chosen.

chrisnavin.com said...

On the media side of the issue: Dahlia Lithwick is pretty clearly not a great legal mind: By the looks if it, her job involves holding a political ideology and infusing an online publication with it by following current events and trying to attract as many readers as possible in order to attract ad revenue.

People who share that ideology read her publication to feel among the likeminded, feel vindicated, and to see their ideology and causes represented and fought for. Like all publications, she's probably going for as broad an audience as possible.

As it should be, she's subject to intense competition, constant changes in technology and the fact that people love 'community,' pictures, sex, gossip, groupthink, Go-Team-Go pep talks, takedowns and smearjobs etc. as much as they like decent political analysis, competent legal reasoning etc.

I'm guessing that can be hard to balance especially given the exclusivit and narrowness of parts of her ideology.

As to such legal analysis, I consistently appreciate Althouse aiming for cruel neutrality and relative independence even if I don't hit the Amazon portal as often as I should (I don't shop at Amazon online),

Althouse can do higher-end legal reasoning and doesn't toe the feminist party line.

***LIke everyone else here, I come only to engage in dispassionate truth-seeking and noble self-examination.

Michael K said...

Thomas is invisible to the left. They are are uninterested in his opinions or his history because he represents the alternative to the Crack plantation.

Have you started Amy Chua's book yet, Crack ?

The Drill SGT said...

Clarence Thomas:

- born in a small black Southern village
- birth language was Gullah (Georgia Creole)
- no indoor plumbing
- single mother
- real food deprivation
- only black student at his HS

why isn't his background considered as authentic and black?

Anglelyne said...

Lithwick's article would've been more accurately entitled "What People Like Me Talk About When We Talk About Talking About Race", or better yet, as long as we're getting all subtexty about it, "What People Like Me Don't Talk About When We Talk About Talking About Race".

Every single liberal assumption about racial inequality is taken as given.

But, at some level, the inability of certain members of the court to understand—or to be willing to listen to someone explain to them—that race continues to play a role in how Americans pursue opportunity, how they are received by others, and how they feel marginalized—is grimly ironic in the context of a case about affirmative action, a policy that was designed, by some measures, to compensate for these experiential inequities.

Lithwick finding irony in people disagreeing with her about AA indicates that the phrase "grimly ironic" is merely a pose marker here. It's the sort of phrase an adolescent deploys - functionally equivalent to eye-rolling and "sigh" - while trotting out the universal claim of the immature mind not yet ready for adult discourse: "If you don't see it my way you just don't understand or you're just not listening!"

The fight over how the court gets to talk about race—who gets to announce that the time for open talk is over, and who gets to decide that a call for honesty is “shameful?”—well, that fissure may endure at the court for a very long time.

And there we go, folks - "open talk" about race means "talking about race strictly within my own narrowly-defined boundaries".

But we already knew that.

Unknown said...

One of several disgusting aspects of Sotomayer's dissent was ignoring Asian-Americans. If affirmative action helped her, then it presumably harmed the white or Asian student whose place she took. Sotomayor has no particular expertise in white or Asian-American culture. Yet, she claims that her background gives her insight into why whites and Asians should be harmed in order to help Hispanics.

David in Cal

David said...

The Supreme Court can't "solve" race. You don't solve race by court decrees, as our history of the last 60 years proves. You can't "solve" it by government, or corporate policies and certainly not by national dialogs lead by journalists or politicians of any stripe.

Whatever solving or race we are going to do is going to happen as it has happened in the past, via individuals who are forgettable and will be forgotten, but will have good enough hearts or minds to see a better way.



HoodlumDoodlum said...

"Lithwick invents a cartoon picture of how people think."

Didn't Stephen Colbert do exactly this, under the guise of satire, and win both critical acclaim and remarkable financial success?

HoodlumDoodlum said...

Just as an aside, has anyone spoken with Crack about the problems ascribing to "this government" 400 years worth of problems? I mean, by "this" I assume we're talking about the U.S., you know, and maybe it's just my math but 2014-1776=238. To be accurate you'd probably want to use the ratification fo the Constitution anyway, so 2014-1787 = 227.

William said...

The way unreconstructed southern Democrats used to be a bulwark of the Democratic Party, now militant blacks have been chosen and have volunteered to take their place. William Fulbright's civil rights record was no barrier to him becoming Bill Clinton's mentor. There was nothing about Sam Ervin's civil rights record to keep Hillary Clinton from enlisting on his staff. Now there is nothing about Al Sharpton's record that keeps Democrats from swamping him with love and support......The ideal is not racial harmony but the continued hegemony of the Democratic Party.........Robert Mugabe has murdered Ndebele tribal members at a brisk rate. Some twenty percent of the population are now refugees. But it's all worth it. The white farmers have been deprived of their land and Mugabe's supporters now have those lands. We see in Zimbabwe not just the justice of reparations, but the beauty and truth of such measures. The point of reparations is not to improve the lives of blacks but to impoverish white people. Only in that way can justice be restored. Even in the refugee camps, people take comfort knowing that white farmers no longer own the arable land. Ndebele tribal members whose limbs were being hacked off rejoiced that they did not have to live under apartheid........I think it's shameful that despite the sacrifices Robert Mugabe has made to make Zimbabwe a sanctuary of racial healing, black politicians do not openly support his uncompromising measures. Someone comes along who openly acts out Crack's philosophy and he falls strangely silent.

Richard Dolan said...

"The issue that divides the Court isn't whether or not racial problems persist, but whether the government should be classifying human beings by race as it goes about trying to solve the various problems and risks making them worse."

Perhaps so, but it was not what divided them in Schuette. The issue there was who should decide whether classifying people by race is a good or bad idea in this context. The plurality plus Breyer thought that the people should decide the issue democractically, which they had done by a 58-42 margin. Sotomayor thought the issue could only be decided by whomever was in a position to decide it before the referendum, which was basically university administrators answerable to a state board. Everyone except Scalia and Thomas thought that someone acting for Michigan was empowered to decide whether to keep or to prohibit the affirmative action policy in play because neither the Constitution nor the Civil Rights Act dictated a required result.

In context, the tone and intensity of Sotomayor's dissent was so odd because she, too, agreed that the cost/benefit determination was an open issue. Her entire 'race matters' rant was irrelevant to the issue, as even she ultimately acknowledged. All that was in play was who, in the Michigan set-up, got to decide what policy should be adopted precisely because "race mattered" to both sides.

Michael said...

William:

Excellent post. We will watch with interest the agricultural production numbers for Zimbabwe.

A look to the future can possibly be found in comparing maps of the Congo circa 1955. Roads. Schools. Churches. Cathedrals, even. Towns.

Google Earth will not show a single road traversing the country. Most towns now taken over by bush. Churches, schools, cathedrals, roads. Gone.

Ignorance is Bliss said...

The Crack Emcee said...

If anybody here asks to touch my hair, I'll scream.

If you don't want people to touch your hair then stop leaving your hair on the cans of Coke.

Saint Croix said...

If you look at Sotomayer's "race matters" passage, you see a long list of bad things that no law can do anything about, let alone the particular law she was supposed to be evaluating. You don't have to think those things are good to know that there is no law that can make them go away.

Bingo. She's identifying problems ("issue-spotting," as attorneys like to say) but she has no solution. Affirmative action doesn't fix any of those (speculative) injuries. Those injuries aren't even recognizable as legal injuries. Are you going to sue people for glaring at you?

Not only does she have no remedy for the injury, her solution is to require racism from our government. So now a whole group of other people are going to be injured. And not just the low self-esteem of the recipients, a phenomenon that I question. There's the very real injury to people with white skin.

Unless you are willing to say that every white person is evil (i;e. adopt racism), it has to pain you to punish innocent white people for the sins of other white people, while you reward non-injured black people for the injuries suffered by other black people.

There is no attempt at redress for an individual wrong suffered. It's all racial group remedy, which is to say, it's not a remedy at all.

Saint Croix said...

One of several disgusting aspects of Sotomayer's dissent was ignoring Asian-Americans.

This got buried on yesterday's thread, but Conor Friedersdorf nails her for that.

I talk about his journalism on the earlier thread. I'm really impressed with his work.

Drago said...

Crack, Ive never met uncle ray. Nor he me.

Hes just some well to do white boy from jersey who has a radio show in the bay area.

Let me guess, you "helpfully" paraphrased something from me.

Lol

TMink said...

Sotomayor is supposed to be a justice. She is supposed to think and write like a judge in the context of her work. Parts of her opinion read like a Latino Studies essay.

Trey

Drago said...

HoodlumDoodlum: "To be accurate you'd probably want to use the ratification fo the Constitution anyway, so 2014-1787 = 227."

Math is racist.

paul a'barge said...

Here is a clue bat for Dahlia:
1. Racism was alive and well and not on a trajectory to be resolved when Brown was argued. It was institutionalized.
2. Racism now is a vestige of the past - the past in which some morons like Sotomayor prefer to remain; because racism is her leg up, and like the weak moron she is, racism is her ONLY leg up.

See the difference?

Marty Keller said...

Crack: "Yes, your white conservative readers [who] also think blacks are 'lazy' [why the quotes?--ed.] and they know more about our lives than they do, which is why they tell us their opinions of our lives so often."

Merriam Webster: "Racism: a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race."

So if the shoe fits, don't touch it!

Unknown said...

----They also think blacks are "lazy" and they know more about our lives than they do, which is why they tell us their opinions of our lives so often.

Its all in your head Crack. Quit projecting, find some balance in your life.