RANDOM THOUGHTS THIS SUMMER -- 2023

If the economy continues to grow, inflation continues to subside, and Joe Biden continues to rack up legislative wins, I will join the minority of Americans who consider Biden an excellent president . . .

But wonder what the majority who don't are smoking.

If Congress passes some version of the Supreme Court Ethics Act, which requires the US Judicial Conference to adopt a Code of Ethics for the Court, I will conclude that Congress saved the Supreme Court from itself . . .

But wonder why the Court couldn't get there itself.

On second thought . . .

Given that Justice Alito thinks hundred-thousand dollar plane trips to Alaskan hunting excursions paid for by a litigant who has had multiple cases before him raised no appearance of impropriety . . .

And Justice Thomas thinks the same about hundred-thousand dollar gifts from a Republican megadonor in the form of tuition payments for a nephew and the purchase and rent-free lease back of her home to his mother . . .

And Justice Gorsuch thinks the same about the head of a law firm with business before the Court purchasing the Justice's two-years-on-the-market Colorado property nine days after the Justice's  confirmation . . .

And Chief Justice Roberts thinks the same about his wife's $10 million in commissions for matching lawyers with elite firms who have business before the Court . . . 

And Justice Thomas does not think his wife's pressuring GOP state legislators to substitute Trump electors for Biden's in states Biden won creates a conflict of interest . . . 

I will stop asking.

If Robert F. Kennedy, Jr. celebrates Thanksgiving this year . . .

Many of his relatives will be missing.

If he celebrates Christmas this year . . .

They will still be missing . . .

But in church praying.

If the Mets do not make the playoffs this year, I will know once again that money . . .

Does not buy happiness.

If the Padres don't make it either . . .

I will have company. 

If Fran Drescher succeeds in winning striking actors and writers the pay equity they deserve . . .

The words “nanny state” will have new meaning.

If Alabama's Sen. Tommy Tuberville continues his hold on military promotions because the Pentagon has told enlisted service members it will respect their Constitutional right  to travel to states where they can procure legal abortions . . . 

I will conclude that either . . . 

Tuberville does not understand Constitutional rights . . .

Or . . . 

Brett Kavanaugh was naive in thinking he would . . .

And . . .

If the Pentagon and the greater (and bipartisan) numbers of Senators and Representatives are correct that Tuberville's hold is both unprecedented and adversely effects military readiness . . .

I will also conclude that GOP embryology . . . 

Has now hijacked America's national security.

If House Republicans realize that America cares about Hunter Biden leveraging his last name for dollars as much as it (or they) cared about Ivanka and Jared doing the same . . .

I will know hell froze over.

If Marjorie Taylor Greene realizes America cares about Hunter's naked selfies with strippers as much as it (or she) cared about Trump's romp with Stormy Daniels . . .

I will know that happened twice.

If Republicans listen to Chris Christie,  "stop hiding from the truth", and realize Donald Trump "is obsessed with the mirror, . . . never admits a fault, . . . will always find someone else . . . to blame" and has been "indicted" not -- as Trump claims -- "for [them]" but rather, as Christie notes, "for his outrageous conduct"  . . . 

I will forgive Christie for Bridgegate.

But . . .

If 37% of Americans continue to believe Biden did not win the 2022 presidential election . . . 

And . . .

If, following the Florida Board of Education's announcement of new standards, students in that state are actually taught that slavery enabled "slaves [to develop] skills which, in some instances, could be applied for their personal benefit" . . .

I will conclude that America is capable of turning artificial intelligence . . . 

Into real stupidity.

All, however, is not lost.

Because . . .

If there is a heaven . . .

Tony Bennett is now in the choir.

THE FOURTH OF JULY

Today we celebrate the 4th of July.

Two hundred forty-seven years ago, a handful of white guys meeting in Philadelphia signed the Declaration of Independence.  

The document ignored slavery and women, proclaimed that "all men are created equal", and issued a bill of particulars against Great Britain.  The bill in essence was an attack on Great Britain's assertion that its King and Parliament's laws were supreme and that neither were required to brook dissent from their wayward colonists.  Both believed they had spent substantial sums in the previous decade and a half running the French out of North America to the benefit of the British colonists and that it was fair and just to assess those colonists for a portion of the costs incurred to secure that victory.  

The colonists, however, had other ideas.

And thus began America's . . .

First revolt against taxation.

The point of the revolt was that, in the previous century and a half, Britain had not imposed direct taxes on any of the American colonies, each of which had created their own legislature to govern their own affairs and assess their own taxes.  When Britain got into the tax business, the colonists, who were not represented in Parliament, called foul.  The British, who by then were going broke on account in part of the sums borrowed to win control of the American continent, said too bad.

And the rest, as they say, is history.

The point of all this is that the Declaration's self-evident truth was not all that central to its actual aim.  

And in truth, preambles and philosophy aside, in 1776 . . . 

Not all men were created equal.

Slaves and women were not.

The Civil War was our first great stride  in the direction of equality and Abraham Lincoln was its founder. In the decade before the war, he made America reclaim Jefferson's self-evident truth as its founding principle and with the War, the Constitutional Amendments abolishing slavery and ensuring equal protection of the laws, and the Reconstruction Congresses concrete acts to benefit former slaves and create at least partial remedies for the enormous damage slavery had caused,  we began to do so.

It was, however, only a beginning . . .

And the victory was only partial.

In fact, as history unfolded, it wasn't even much of a victory.

In the last quarter of the nineteenth century and first half of the twentieth, America recreated slavery.  It did so  in the form of sharecropper poverty,  disenfranchisement, the Klan and the legal myth of "separate but equal".  The sons and daughters of former slaves could not vote in our elections, attend our schools, or enjoy most of the benefits of the New Deal.

For most of my life, the central project of America has been the elimination of that recreated slavery.

And we have made substantial progress.

In the 1960s, we passed the Voting Rights Act and the Civil Rights Act. We eliminated many of the laws and practices that barred Blacks from voting, ended overt discrimination, and attempted to at least right some of the egregious wrongs of our past.  

And many of these efforts worked.  

The pre-clearance provisions of the Voting Rights Act, for example, allowed the Justice Department to monitor jurisdictions with historic voting rights abuses and led to enormous increases in the registration of minority voters.  Similarly, affirmative action led to enormous increases in minority membership in labor unions, as well as enormous increases in the numbers of minority students in our colleges and universities.

Last week, however, the Supreme Court declared affirmative action unconstitutional.

In cases assaying the legality of affirmative action programs at Harvard and the University of North Carolina,  the Court concluded that neither program was legal and that the 14th Amendment made the Constitution (i) color blind and (ii) race neutral.   In its 6-3 decision, Chief Justice Roberts wrote the decision for the Court and Justices Thomas, Gorsuch and Kavanaugh wrote concurring opinions.  Justices Sotomayor, Jackson and Kagan dissented, with Sotomayor and Jackson writing dissents.

Everyone should read all the opinions.

This is especially true for those who decide to comment on them.

But it would also be good for the American public as a whole.

We tend these days to get our news from Facebook and share our opinions on Twitter.  Neither puts a premium on deep analysis or extended conversation and both have had an unwelcome effect on public discourse.  It tends these days to be brief . . .

And rude.

I have read the opinions.

And this is my opinion on them.

First, the Supreme Court is an appellate court.  It does not find facts.  That is done by the trial courts. In both the Harvard case and the UNC case, the trial courts found that the two affirmative action plans, which were pretty much identical,  did not violate existing law.  In particular, they found that the programs were narrowly tailored and increased diversity among the student body, the latter of which has been deemed a compelling interest justifying affirmative action since at least the Bakke decision in 1978. And as Justice Jackson pointed out in her dissent, the potential for a "plus" factor owing to race in the UNC plan was available to all races, not just minorities.  

Second, the claim that the Constitution is color blind is not accurate. Or, put differently, the claim is at least not accurate in the strong form advanced by Justice Thomas.  As pointed out in both dissents, at and around the time the 14th Amendment was ratified, there were numerous examples of affirmative action in the form of benefits to former slaves and their progeny.  And the objection that those measures violated the 14th Amendment because they were not color-blind was rejected at that time.

Third, the notion that America has solved its race problem or that any remedies are time-barred on that account is nonsense.  The country has made progress, enormous progress.  But, as a consequence of past discrimination, minorities are poorer and sicker than white Americans and racism is not a thing of the past.  There is still work to do.

And Harvard and UNC were doing it. 

Fourth, on a personal note, it is not at all clear to me who the victims are here. To hear Justice Thomas tell it, anyone who lost a spot at an elite university on account of affirmative action is one.  That, however, would probably make me one.  I am a white guy who had higher grades and test scores than some minority candidates who were accepted at colleges that rejected me.  

I, however, went on to Dartmouth College and Yale Law School . . . 

Which is hardly the picture of victimization.

Two hundred forty-seven years ago, a group of white guys signed a document saying "all men are created equal".

They were right to do so.

Last week, the Supreme Court issued an opinion at war with that declaration.

And they were wrong to do so.