April 15, 2010

Stevens' heresy

Ann Coulter's new column points out something that has been lost in all the tributes by the media to the retiring Supreme Court Justice John Paul Stevens. A long time ago, in the government contracting quota case Fullilove, he noted that quotas are essentially reparations, and asked why then are we giving reparations to voluntary immigrants from south of the border?
But on many other issues, such as race discrimination, Stevens swung so far to the left that his earlier opinions would be unrecognizable as having been written by the same man.

In 1978, Stevens was not only in the majority in University of California Regents v. Bakke, but he wrote the opinion holding that the school's race-based admissions program violated Title VII and ordering the university to admit Bakke.

In another case of government race-based classifications, Fullilove v. Klutznick (1980), Stevens ridiculed the idea of race-based "remedies" being applied to every ethnic group under the sun.

Adopting Justice William Rehnquist's view that the specific history of blacks in America makes their claims unique, Stevens wrote: "Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians." (Remember when you could use terms like "Eskimo" and "Indian" without being accused of a hate crime?)

Unlike blacks, who were "dragged to this country in chains to be sold in slavery," Stevens said "the 'Spanish-speaking' subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived."

Now fast-forward to 2003, when the court considered the race-based admissions policy at the University of Michigan. The school automatically awarded 20 points -- one-fifth of the total points needed for admission -– to every minority, including not only blacks, but also Hispanics, Indians, Eskimos and Aleuts.

This time, affirmative action for Aleuts was just peachy with Stevens, who came up with a ludicrous procedural objection to the lawsuit, basically concluding that no one ever has standing to sue for race discrimination in college admissions. I guess he figured it was time somebody did something about the University of Michigan's long, shameful history of discriminating against Aleuts.

That's quite a change from the Justice Stevens of Fullilove, who compared government affirmative action programs to Nazi policies, saying if the government "is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reich's Citizenship Law of Nov. 14, 1935," translated in Volume 4 of "Nazi Conspiracy and Aggression."

Whatever you think of Stevens' newfound admiration for government racial preferences, it's preposterous to say, as Stevens did, "I really don't think I've changed all that much." 
Here's more from Stevens' 1980 dissent in Fullilove, when he was 60:
Even if we assume that each of the six racial subclasses has suffered its own special injury at some time in our history, [p538] surely it does not necessarily follow that each of those subclasses suffered harm of identical magnitude. Although "the Negro was dragged to this country in chains to be sold in slavery," Bakke, supra, at 387 (opinion of MARSHALL, J.), the "Spanish-speaking" subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived. There is no reason to assume, and nothing in the legislative history suggests, much less demonstrates, that each of the subclasses is equally entitled to reparations from the United States Government. [n8]
 
At best, the statutory preference is a somewhat perverse form of reparation for the members of the injured classes. For those who are the most disadvantaged within each class are the least likely to receive any benefit from the special privilege even though they are the persons most likely still to be suffering the consequences of the past wrong. [n9] A random [p539] distribution to a favored few is a poor form of compensation for an injury shared by many.

My principal objection to the reparation justification for this legislation, however, cuts more deeply than my concern about its inequitable character. We can never either erase or ignore the history that MR. JUSTICE MARSHAL has recounted. But if that history can justify such a random distribution of benefits on racial lines as that embodied in this statutory scheme, it will serve not merely as a basis for remedial legislation, but rather as a permanent source of justification for grants of special privileges. For if there is no duty to attempt either to measure the recovery by the wrong or to distribute that recovery within the injured class in an evenhanded way, our history will adequately support a legislative preference for almost any ethnic, religious, or racial group with the political strength to negotiate "a piece of the action" for its members.

Although I do not dispute the validity of the assumption that each of the subclasses identified in the Act has suffered a severe wrong at some time in the past, I cannot accept this slapdash statute as a legitimate method of providing classwide relief.

Perhaps some Senator could ask Obama's upcoming nominee what he thinks of the sainted Stevens Fullilove opinion? And, then, when they demur to agree, ask why brand new immigrants should legally benefit from preferences from the moment they arrive, even if they arrived illegally?

And, then, ask was it just to the rest of Americans for immigrants from India to have been reclassified from white to Oriental in 1982 in response to lobbying by immigrant Indian businessmen for special breaks on government contracting.

That would be fun.

29 comments:

Anonymous said...

OFF TOPIC(?):

GM adds head doctor to board of directors Has background steeped in ethics and equality.

by Zach Bowman (RSS feed) on Apr 14th 2010 at 5:39PM

General Motors has officially added a 13th seat to its board of directors just for Cynthia A. Telles. If you live in the greater L.A. area, there's a good chance that name sounds familiar. She spent a lengthy 13 years as a Los Angeles commissioner, and has background steeped in ethics and equality. But while you'd expect Telles to have some connection to manufacturing or the automotive industry, as far as we can tell, she doesn't.

Telles has her Ph.D. in Clinical Psychology from Boston University, and currently serves as the director of the UCLA Neuropsychiatric Institute Spanish-Speaking Psychosocial Clinic. Try fitting that on a business card. According to the GM press release, she's also had quite a bit of work published in the mental health field, which means that eventually, Telles may provide us with the answer behind what GM was thinking with cars like the Pontiac Aztec.

She is quite accomplished in the business world, though. Telles has sat on a number of boards in her time, including slots on the Kaiser Foundation Health Plan and Hospitals, Americas United Bank and Sanwa Bank California, among others. What impact will Telles have on GM? It's hard to say just yet, but we'll keep our eyes peeled.

dearieme said...

No-one has criticised me yet for using "Esquimeaux", though "Injuns" does seem to raise eyebrows.

Anonymous said...

I don't doubt that Stevens is still sharp, or that his viewpoints changed over the years.But I can't help wondering how much the Justice's opinions are influenced by their clerks, especially as they age.

Curtis Crawford said...

In University of California Regents v. Bakke, Stevens wrote that the Davis Medical School's race-based admissions program clearly violated Title VI of the Civil Rights Act of 1964. This Opinion received four votes, which, alas, was not a majority. The Majority Opinion, by Justice Powell, did require Davis to admit Bakke, but, alas, inaugurated a constitutional principle that universities may give racial preference to applicants to boost diversity.

Captain Jack Aubrey said...

Unlike blacks, who were "dragged to this country in chains to be sold in slavery," Stevens said "the 'Spanish-speaking' subclass came voluntarily, frequently without invitation, and the Indians, the Eskimos and the Aleuts had an opportunity to exploit America's resources before the ancestors of most American citizens arrived."

Holy WTF??? Indians don't deserve reparations because of why? Wow. I guess I can understand that - I'm totally jealous of their bear claw and seal skin collections, and all that obsidian they've stockpiled over the generations. Totally unfair...

I suffer no white man's guilt over our conquest of the Indians and our annexation of their lands, but Stevens clearly had a few screws loose when he wrote that.

Now if Stevens had written today that the "Spanish-speaking subclass" had come "uninvited," he would be accused of a hate crime.

Remember when you could use terms like "Eskimo" and "Indian" without being accused of a hate crime?

I must admit I don't always "get" Ann Coulter. We can still use Eskimo and Indian, right? Or is it Inuit and Aleut and Native American? OK...

But Coulter misses the opportunity to point our Stevens use of the word "negro." Now I know you can't use that anymore. Probably one day they'll find a way to doctor recordings of MLK speeches by replacing his use of the word "negro" with "African-American," or whatever newly contrived term has replaced it.

We can never either erase or ignore the history that MR. JUSTICE MARSHAL has recounted.

Why do I have a hunch that Thurgood Marshall recounted that history over and over and over and over and...?

Thrasymachus said...

To find anything at all strange with this would be to assume Stevens produces his own thoughts and makes his own decisions. But to attribute power to the Supreme Court and its members, even arbitrary and capricious power unrooted in their own whims and preferences, is to mislocate it. Somebody else tells Stevens what to think, and he thinks it. Who exactly? The people who produce good thoughts.

fafasfasfasfd said...

Adopting Justice William Rehnquist's view that the specific history of blacks in America makes their claims unique, Stevens wrote: "Quite obviously, the history of discrimination against black citizens in America cannot justify a grant of privileges to Eskimos or Indians."

What a lot of crock. Blacks were brought here partly by force but partly at the behest of the African slave masters who sold them. The perception among most people that evil whites enslaved innocent blacks is total BS. Africans enslaved other Africans and sold their excess slaves to whites. Whites didn't capture blacks and drag them here. Slaves were bought from African kingdoms who said, 'come and buy some more'. It's because of our false understanding of history that people in the West think that ALL of Africa deserves reparations.

And in many ways, blacks were far luckier than American Indians. Whites made blacks work in the white world, and so blacks eventually rose in the white world. Whites also encouraged blacks to have lots of children, so 300,000-400,000 blacks became 40million blacks. Also, blacks didn't have their homeland stolen from them. They were taken away from their homeland but this was essentially the doing of African slave masters. If there hadn't been African slave masters, the New World could not have imported blacks since white man couldn't survive on the continent of AFrica for long back in the days.

American Indians, on the other hand, lost their native land, were wiped out in huge numbers. It's been estimated that there were up to 9 million North American Indians but over 90% of them were wiped out by disease. Other were shot in cavalry raids. And the rest were driven into reservations and forced to live in miserable conditions.

Blacks went from 300,000 to 40 million and live in the heart of America(and are doing a good job of destroying everything) whereas many Indians still live in isolated reservations. And Indian population was greatly reduced. Seems to be the story of Indians is far more tragic.

And if reparations are based on history, shouldn't chinese-Americans be given reparations since their ancestors suffered so badly building railroads?
And one can even make a case for reparations for Mexican mestizos and indians if we take a broader perspective. White man--Anglos and Hispanics--came to the New World, spread diseases which killed perhaps 50 million in the Latin Americas, enslaved and raped the natives. If we take this perspective, Mexican Indians and American Indians can be seen as one group--indigenous natives who were exterminated and exploited by Europeans--Hispanics and Anglos. And since US took over the SW, one could argue American whites took over the responsibility for paying reparations to SW Indians.

I'm against all ideas of reparations, and I say shame on Steve for supporting reparations and AA for blacks. Why not for American Indians or Mexican Indians when they were much greater historical 'victims' of Whites?
And, Asian Indians can play this game too since India had been under Anglo-rule for over 200 yrs. Asian-Indians can argue Anglo-British imperialism and Anglo-American imperialism were one and the same. Whether it was Asian-Indians or American-INdians, it was the same story of evil whites dominating, oppressing, and exploiting through 'racism' and imperialism. So, gimme, gimme, gimme.

I suspect the real reason why whites want to make an exception for blacks has less to do with historical guilt than social/political fear. Blacks are numerous, big, angry, and scary. They are vocal and demanding. Better to appease them or else get our white asses whupped.

fafasfasfasfd said...

Also, anti-immigration folks seek to drive a wedge between blacks and other minorities by wooing blacks--and ONLY blacks--with special privileges. It's pretty rotten. If we are gonna justify reparations for blacks on the basis of white historical guilt, then it must apply to all other 'victims' as well. It's so easy to play victim these days.

Another reason why reparations make no sense. Whites such as Polish-Americans who never invaded anyone must also pay reparations for blacks. And Arab-Americans and Asian-Americans must also pay taxes that support reparations for blacks. Not only whites but ALL of America--even non-Anglo-white America--is being squeezed to pay for this. So, even 'victim' groups must pay for special privileges of blacks.

If reparations are to make sense, only Anglo-Americans should pay it since they are ones who used blacks as slaves. On the other hand, this country owes a special debt to Anglo-Amerioans for laying down the political, economic, and cultural foundations of this country. Since the good far outweighs the bad in terms of what Anglo-Americans did, they owe nobody nothing. If anything, everyone--even blacks--owe a great deal to Anglo-Americans.

If our position is that black social failures are mainly due to the genetics, conceding to reparations for blacks undermines our argument. Of course, politics is opportunistic, and Sailer is trying to work within the realm of the political possible, but we need strong ideals. Sailer's 'let's woo blacks and blacks only with AA' is no less hare-brained than Karl Rove's 'let's woo the Mexicans with big fat houses'.

Anonymous said...

I find it fascinating that Amerind Americans are considered to be less deserving of reparations and privileges than African Americans on the basis "Oh well, if they didn't sort themselves out totally to resist the Europeans before European Americans turned up then fuck them". By that logic African Americans deserve their treatment because Africans had the "full opportunity" to exploit Africa's resources before they were sold onto slaveships. That's before even getting into the fact that giving purely leveling reparations and privileges to a relatively talented and small group is naturally less harmful than to a large and talentless group.

Utterly bizarre logic. How does this even approach the kind of thinking that should be expected of a first class legal mind?

mnuez said...

What an excellently expressed opinion. Thanks for that.

To me the most visceral point is the one that Stevens expressed as:

"For those who are the most disadvantaged within each class are the least likely to receive any benefit from the special privilege even though they are the persons most likely still to be suffering the consequences of the past wrong."

As you know, Steve, my present policy predilictions are decidedly leftist but in the mold of reformers like Eugene V. Debs or (more closely) 1912 Theodore Roosevelt.

This is a leftism that seeks to improve the lot of individuals rather than of some communal body such as a race or gender. Affirmative Action serves to take from the most needy white male in order to give a little something extra to the most privileged black female.

I'm quite confident that a study of who benefited from Affirmative Action will indicate that most of those women and minorities who benefitted were had a more privileged background than the average white American boy. The black kids from The Wire aren't the ones being offered editorship of the Harvard Law Review, the comfortably middle-class child of two intellectuals is.

Essentially, for every minority individual moved into the upper class, an otherwise worthy white kid is being kept out of the middle class.

This is because today's leftists are not the Roosevelt's leftists. They aren't the workers who suffer under harsh and demeaning conditions (or once did) and want a better life for the working class. They're elite, privileged folk who neither know nor care about individuals who are suffering from the ravages of capitalism run amock. What they care about is feeling more comfortable about their station in life by seeing more black faces around them and thus being able to escape their white guilt.

This is a problem.

(It's a problem that afflicts Jewish individuals who want to break into Jewishly dominated businesses too but whom the gatekeepers would prefer not to hire as they'd like to dilute the Jewish makeup at the top of their professions but I know that your and your readers' minds have long ago been made up to the contrary and are quite wary of reconsidering whether they may harbor inaccurate beliefs so I'll just leave this in a parenthesis for the sake of the record.)

Anonymous said...

What gets me is we have quotas here in CANADA where the Negro was NOT dragged into the country in chains to be sold into slavery. In fact he wasn't "dragged" into the country at all. He invited himself.

Fred said...

Is it possible that Stevens converted to Judaism sometime between the Bakke case and the U. of Michigan one?

"Holy WTF??? Indians don't deserve reparations because of why? Wow. I guess I can understand that - I'm totally jealous of their bear claw and seal skin collections, and all that obsidian they've stockpiled over the generations. Totally unfair..."

Let's get an appraisal of all those seal skins and obsidian before we're too quick to dismiss Stevens's point.

Anonymous said...

When I see a judge whipsaw like that, I assume he's bribed. Google 'Chicago judges'.

When Hummel and Howe were the crookedest lawyers in America, they'd make a melodramatic speech about Irish or Italian or German grievance, depending on the jury, and they made sure it was all one ethnicity.
Meanwhile, they gave the judge cold cash. He was covered by people's contempt for I or I or G; they were covered by how he summed up the case.

Haven't thought about this since OJ. That detective sure got a nice book contract. Too bad some extraneous racist stuff popped up about him. Nice book contracts for the other prosecutor and the judge too.

Dalrock said...

Fascinating. There is a larger story here of which Justice Stevens is but a small part. There is near universal acceptance that Affirmative Action is a "necessary evil". Even conservatives by and large appear to accept this by refusing to address the question. At the same time, the reason offered for why this necessary evil is necessary is a wildly moving target! Has anyone ever mapped the larger history of the changing rationale for an otherwise largely unchanging institution?

Most conservatives wouldn't buy into the basics of HBD, but Affirmative Action does rub them the wrong way. They are just afraid of being called a racist. It would be helpful to have the changing argument for the need for this awful institution mapped out in one place. The hypocrisy is not just changing the rationale, but the way history is continually rewritten to claim that this has always been the argument.

This way maybe we can focus our energy on the more important issue of winning the war with Eurasia. Or was that EastAsia? I can never keep that straight.

AmericanGoy said...

Look, I don't see why you big girly men have an issue with government preference and financial help for certain minorities, such as African Americans, Indians and Orthodox Jews?

Don't you realize that you are powerful and that this is done to combat the nefarious influence of the elite white ruling class?

If you are white, you should recognize what your forefathers have done.

YOU should go out onto the street, preferably to a poor urban neighborhood, say, Compton, and find a local down on his luck minority (he is suffering because of the system put in place to benefit YOU, the ruling elite) and give him at least 5% of your annual salary (pre-tax!).

You sniveling, ultra powerful white males sicken me!

Roger Chaillet said...

Rudy Giuliani owes me.

After all the Romans of the Empire enslaved my English ancestors. Ditto for the Muslims. http://article.nationalreview.com/290745/fear-of-the-horizon/john-derbyshire

As for spreading disease, what about illegal aliens bringing chagas and drug resistant TB north of the Rio Grande? http://www.nlm.nih.gov/medlineplus/ency/article/001372.htm

The hypocrisy lies in the fact that only Whitey is held to account, and no one else.

As for affirmative action in reality, ask yourself why George Bush was a staunch supporter of affirmative action for Mexicans?

No one from Mexico ever rode the back of the bus in Selma.

Anonymous said...

I said something similar in a comment on a different post, but I think it's important, so I'll repeat myself: Any program that starts out with "reparations" as its purpose will tend to end up with a different and logically unrelated justification, i.e., "leveling the playing field". The former is a narrow and inflexible goal: take a specific injustice and make it right. The latter is an extremely powerful metaphor that can justify just about any kind of social engineering you can think of, and this makes it far more useful. The thing is, both of those rationales sort of feel the same to compassionate lefty types, so they find it very easy to slide from one to the other, without necessarily even noticing.

Case in point: Hispanics may never have been slaves in America, but their lack of success proves that there is a problem with the playing field; therefore the playing field must be leveled (engineering!); and of course the proper tool for this is affirmative action. There may be factual problems with this reasoning, but logically it is quite sound, as long as you accept that your mission is "leveling the playing field" (i.e., reordering society to eliminate what you perceive as injustices), rather than "compensation for past wrongs."

Anonymous said...

Hispanics may never have been slaves in America

Apart from the indigenous, non-Spanish ones enslaving each other and the wholsale ritual sacrifice thing of course.

As all correct thinking folks know, that stuff doesnt really count for anything anyhow - I mean it was like years ago! - not compared with the horror of underperforming relative to whites in modern America.

Anonymous said...

GM adds head doctor to board of directors Has background steeped in ethics and equality.

I first read that as ethnics!

Though we all understand in a wise latina style that ethics and ethnics are all, somehow, the same thing, sorta yknow.

fasffasfadadf said...

Trust me. If there were 40 million big, strong, angry American Indians whose ancestral land had been stolen and 1 million geeky black Americans whose ancestors had been brought as slaves, there would be more 'white guilt' for the 40 million Indians than for 1 million blacks.

White guilt is actually a cover for white fear to some extent. Since whites don't wanna admit they are chicken and scared shitless of blacks--therefore, making concessions out of fear--, they try to turn it into a moral issue. That way, whites can show off and take pride that they are for AA out of moral conscience than out of political chickenshittedness.

We all do this to some extent. There are things in life we are forced to do, and it hurts our pride that we don't have a choice. So, we pretend that we are participating freely and out of good will. Like the taxes we pay or the sensitivity training workers are forced to attend.
The power of rationalization is limitless.

Anonymous said...

That would be fun!
It seems that Brennan was arguing that only Black Americans who had been in the USA since slavery should receive a quota meaning that people like Obama and Powell (children of foreigners) would be excluded. Is that a correct understanding of his opinion?

Anonymous said...

If that is the case what logical follows is that institutions would have to design some a graded system where people like the children of Obama would have to get half the points that a full blooded Black American would get.
Of course there wouldn't be any way to check, practically it would only apply to first generation black immigrants.

Anonymous said...

On an unrelated note it pisses me off that Sotomayor is considered non-white to me she looks white and her skin tone is definitely white. Ethnic yes but no more so than Scalia.
Not to mention her parents, grandparents and probably great grandparents where American citizens and did not have to live in the hell of war and economically backwards parts of Europe.

Anonymous said...

"She... has background steeped in ethics and equality."

Such a wonderful person! Why do I have a sinking feeling in my stomach?

ATBOTL said...

"It's a problem that afflicts Jewish individuals who want to break into Jewishly dominated businesses too but whom the gatekeepers would prefer not to hire as they'd like to dilute the Jewish makeup at the top of their professions but I know that your and your readers' minds have long ago been made up to the contrary and are quite wary of reconsidering whether they may harbor inaccurate beliefs so I'll just leave this in a parenthesis for the sake of the record."

Why don't you move to Israel where you won't have to compete with inferior races for jobs? I think that would be better for all of us.

Anonymous said...

Jewish individuals who want to break into Jewishly dominated businesses too but whom the gatekeepers would prefer not to hire as they'd like to dilute the Jewish makeup at the top of their professions

Ooooh that is just hilarious!!!

And who are these gatekeepers? In which professions? That those powerless jews just can't overcome?

Anonymous said...

Reparations/affirmitave action and the like...

Lets admit that the US is an evil racist society. Lets state that clearly. Lets make it absolutely crystal clear that anyone, non-european, arriving in the US after May 1st 2010 is fully and totally aware of this infamy. Ads printed in every conceivable language, TV ads all around the world 24/7everything.


Anyone arriving after the magic cut-off of May 1st is not entitled to any special treatment, AA all the rest. Anyone resident before that time gets all the usual goodies.

Because they have voluntarily submitted the full horror of white racism in the US. By arriving after that date, legally or illegally, they are deemed to have entered a contract, part of which is an assumption of racism in the US.

Furthermore this applies to their descendants too, US born and bred. Again this must be absolutely clear on arrival.

You are condeming yourself and your descendants to a life of perpetual suffering.

David said...

"What have we learned?"

Supreme Court Justices are not the arbiters of legal norms. Many, even most, blow with any breeze emanating from the pop zeitgeist, with all the intellectual dignity of 12-year-old girls.

David said...

>Ooooh that is just hilarious!!!

And who are these gatekeepers?<

mnuez met his quota of one good comment per x months, and you complain about an aside?