thoughts from a brokenSoldier

I know it has been a while since I’ve written, but hopefully I’m getting back into the swing of things because this article on HuffPost grabbed my eye today.  It has hardly been a secret that many Supreme Court justices in this nation’s history have been obviously prejudicial concerning race, but – at least since the Civil Rights Movement – they’ve at the very minimum had to conceal the overtly racist aspects of their personal opinions and public statements.  And for the most part, they have been able to do so.  Apparently, however, give the country a “conservative revolution” (ironically spurred by a product of that supposedly elitist den of liberalism, Hollywood), and thirty years later you have a Supreme Court slightly dominated by conservatives.  Add to that mix the following: one serving of the nation’s first black President, two gallons of the Fox News noise machine with Beck, Hannity, and O’Reilly, and just a dash of the subsurface racism so many in this country still harbor, and VIOLA!!  You now have the conditions that are ripe for certain Supreme Court justices to throw back all but the thinnest veil and display their bigotry to all.

In the article, Scalia discusses one of the most seminal cases in US Supreme Court history – Brown v. Board of Education.  Most in our country think this moment in our history was one of our best, a leap forward in our society that had been too long in coming and that was a step in the direction of healing the wounds of our past.  And since the nine Supreme Court justices are the ultimate arbiters of constitutional law in our system, one might think that a current justice discussing such a case would be doing so in an attempt to illuminate the history of the court and how it has been a heavy contributor to our nation’s progress.  But one would be very, very wrong.

Instead, Scalia chose to trumpet his disregard for the decision, even going so far as to say that he would have dissented in the decision.  To translate, Antonin Scalia – a current US Supreme Court Justice – stood in front of an assembly of law students at the University of Arizona and announced that he would have voted to keep the schools segregated and uphold the abhorrent “separate but equal” system.  Now, some of you might see this and take it as normal bigot behavior, but it is something altogether more sinister due to the reasoning behind his statement.

Using his "originalist'’ philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'’ public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.”

He is standing in front of law students, telling them that the schools should have been kept segregated because that’s the way the framers wanted it, and that’s the way it should have stayed – human rights be damned. 

One can only assume that Scalia also believes that since the framers made very clear their acceptance of slavery (see here for a very good discussion of the reasons the framers allowed slavery into the fold, and exactly why they did so), he believes that slavery should never have been abolished.  Following his “originalist” line of logic, he must also believe that African-Americans should still only count two-fifths as much as white men.  And, for that matter, I can only assume he would vote to deny women the right to vote.

But his brand of “originalist” bullshit fails to stand up to simple reason.  When the authors of the Constitution wrote the document, they recognized that their efforts were not exhaustive by any means, even considering the decreased number of issues facing them in comparison with the modern world.  As such, they also wrote an immediate ten amendments to their original document that we all know today as the Bill of Rights.  I mean, this is really all middle-school stuff, isn’t it?  And one specific part of Scalia’s statement betrays the fact that he knows all of this, and is simply intellectualizing his racist opinions to justify them legally.  At the very end of his statement, he addresses what he believes the impetus was behind the decision when he says (bold mine for emphasis): 

He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

As a student and longtime practitioner of the law, he knows damn well that the justices behind that decision were not motivated simply by their desire to appease a demanding majority in the population, and his assertion of such is ignorant, dismissive, and stunningly disrespectful.  If somehow he does not know their motives, he can read the majority decision in the case, and then if his opinion isn’t changed, he can come right out and call those justices liars for concealing their true motive.  He also knows very well that in law, no precedent is immune to being overturned, provided the arguments for such are valid and compelling.  That is the very basis of our self-correcting system…you know, the same system Scalia has worked within for the better part of the last half-century.

But Scalia’s bigotry alone is not the worst piece of this pie.  What disturbs me is that he is making a very public show of demonstrating how to cloak your racism in legal terms, and he is doing so in front of future attorneys and justices.  Now, most of them (hopefully) can see the idiocy in his remarks, but it is guaranteed that there are some ears who heard those remarks and instead of hearing something ridiculous, they heard a how-to seminar.  And though Scalia splits hairs in trying to distinguish between “original meaning” and “original intent,” when it comes to the slavery and civil rights situation, there was no difference between meaning and intent – the intent behind the laws were motivated by hate, which was in turn propped up by huge secondary interests.  In the case of slavery, it was economic influence that was fighting against the abolition of slavery, and in the case of segregation and civil rights, the opposition was driven by political concerns of white politicians reluctant to relinquish any of their hold on the nation’s reins.

So I guess that’s where we’ve come to in the current political climate.  Boisterous protests abound among mostly white conservatives decrying the onset of, socialism, fascism, or communism (or whatever other code word they’re using for black this week).  Signs and comments comparing Obama to everyone from Hitler to Stalin to Pol Pot flood the cable media airwaves through protests, pundits - and even “news” anchors and reporters on Fox News.  And all this is happening after George W. Bush – a Republican president – flouted both the framers’ meaning and intent concerning basic rights and issues such as unlawful search and seizure, warrants for surveillance, and even the conduct of war, all in the name of “national security.”  So I guess it isn’t too much of a leap from that to hearing a current justice denounce one of the Court’s major decisions in support of racial equality in our nation’s history.  If I didn’t know better, I’d say that comments like this would get him in some very deserved hot water, but they won’t. 

And this is the very reason I laugh whenever I hear someone complaining about “liberal judicial activism.”  For the past twenty years, it has been the conservative justices on the court that have tried their hardest to complicate and undo the socially progressive decisions of the justices and Courts before them.

Is it just me, or does the far right-wing in this country have a monumental problem with projection?  Ah, a post for another day…