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A Supreme Court Conversation

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick and Stuart Taylor Jr.

Everything Conservatives Should Abhor

Posted Friday, June 29, 2007, at 11:17 AM ET

Dear Dahlia and Stuart,

I woke up at 4 this morning to the realization that I cannot begin to understand how Chief Justice John Roberts and his colleagues could really think that the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together is anything remotely like the system of racial apartheid, subjugation, and servitude practiced in the American South. His concluding sentence, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," equates two such fundamentally different practices that it leaves me stunned.

I want to try to convey a sense of how profoundly misguided and ahistorical that conflation is. Let me return to the most rhetorically powerful argument against the two school-district plans in this case: the fact that they would require some parents to say to a child, "You can't go to that school because of your race," just as black parents had to say to their children in the South before Brown.

Think first about being a black parent explaining race to a child in North Carolina in 1963. That year, Gov. Terry Sanford went on statewide television to urge an end to segregation in public accommodations and read a letter from a black soldier stationed at Fort Bragg describing what it was like to drive his children from eastern North Carolina to visit their grandparents in Texas. It was a harrowing experience, he wrote. Planning that trip was like a military operation; every supply that might be needed had to be packed and stuffed in the car for a trip of more than 1,000 miles. When they were hungry, they could not buy food. When they were tired, they knew they would be turned away from the motel. They traveled in fear that a child would become sick on the trip. Day after day they would drive by tourist sites and amusement parks that they could not enter; gas stations at which the children were barred from the restroom. How do you explain to a child why she can't go to the swimming pool, play in the park, or go to the movie? At home or on the road, this was an experience a child of color had repeatedly every day. Every day. And the reason: The child was an inferior being whose very presence in a place would be repulsive to the community.

Is that what happens under the Louisville or Seattle plans? What some parents will sometimes have to say to their children under these plans is something like this: "You will be going to PS 111 instead of PS 109 this year, and here's why: Our community is trying to make sure that we get over the racial separation that has been such a troubled part of our history. So we want to make sure we have a pretty good number of white and black children in all of our schools. It's important, even though it sometimes means you don't get your first choice of a school assignment this year." As I read the record, that is unlikely ever to happen more than once to any child white or black. What is the big deal?

Why is it so critical that we "get beyond race" in every possible way? Get beyond despising or disliking people because of their race, yes. Get beyond oppressing people because of their race, yes. But avoiding any consideration of race as though it were toxic? I don't understand that.

The court's decision is everything conservatives should abhor. It is a form of social engineering dictated from Washington. It ignores the principle of local control of schools. It sets aside the judgment of elected officials, even though nothing in the text of the Constitution requires that result, and the original understanding at the time of drafting of the 14th Amendment is solidly against it. It equates the well-intentioned and inclusive programs supported by both white and black people in Louisville and Seattle with the whole grotesquerie of racially oppressive practices which came down, as Charles Black once said, in apostolic succession from slavery and the Black Codes.

The plurality opinion is elegantly reasoned and reads as if it could have been written by a law review president. But it fails the very first lesson taught to preschoolers who watch Sesame Street: "Which of These Things Is Not Like the Others?"

It's been a pleasure talking with you both.

Best regards,
Walter

the breakfast table
entries
123456789101112131415161718
from: Walter Dellinger
to: Dahlia Lithwick and Stuart Taylor Jr.

Everything Conservatives Should Abhor

Posted Friday, June 29, 2007, at 11:17 AM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor. Stuart Taylor, a New York Times reporter from 1980-88, writes for National Journal and Newsweek.
Illustration by Rob Donnelly. Photograph of Justice Antonin Scalia on Slate's home page by Alex Wong/Getty Images.
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Remarks from the Fray:

This decision is a disappointment. Not in its result, because I strongly believe this is the correct decision. What is disappointing is that the Supremes chose to issue another decision that doesn't announce a guiding principle, and which applies only the present case. This reminds me of a classic Calvin & Hobbes cartoon, in which our heroes created an army of Snow Goons to battle the evil Susie Derkins. But the Snow Goons eventually turn on Calvin & Hobbes. After finally defeating the Snow Goons, Calvin says to Hobbes, "Well, we sure learned a valuable lesson today. And that lesson is this: Snow Goons are bad news!" To which Hobbes replies, "That's a lesson that ought not to have any applicability elsewhere in life."

This is a Snow Goons decision. It stands for the extremely narrow proposition that school districts can forbid expressions that appear to advocate recreational drug use. What about other messages that are contrary to the educational mission of the school? We don't know, because the Supreme Court is only interested in resolving for us the extremely pressing issue of whether "BONG HiTS 4 JESUS" is acceptable speech in an educational environment. Heaven help any school administrator who looks to this decision for guidance. […] Next year's landmark decision: "METH 4 MOSES"

--CaLawyer

(To reply, click here.)

I'm not a constitutional scholar, but how can Dellinger say that there is no harm to the taxpayers in Hein, and so no standing? Isn't the precedent, upheld by the FEC ruling, that spending money is a form of speech? And so isn't saying it's okay to spend my tax money on something sort of a tacit way of saying I agree with or I approve of what it is being spent on? So if my tax money is being spent to support religious institutions that I don't support or agree with, isn't that a violation of my first amendment rights? I mean isn't the harm that the government is essentially forcing me to support particular religious institutions that I might not agree with? Or by Dellinger's argument, would my case only have merit if I argued that having to support a specific religious institution with my tax money was violating my freedom to practice religion (or not) in the way I want.

I realize that there's a potential problem with the argument I've laid out b/c it opens the door to saying that spending tax dollars on anything that I don't approve of is a violation of my right to free speech. But I would think that there's probably a fairly clear way to distinguish between spending in general and spending that targets only specific religious institutions. Also, my argument isn't that the court should necessarily find for the taxpayer group in this case, but that I think that if the legislature or the executive branch is going to ask me to contribute money to religious groups...then I should at least be able to have the judiciary decide if they're doing it in a constitutional way.

--SlateSurfer

(To reply, click here.)

It looks like the student made a minor mistake. Instead of unfolding the banner at or near the school grounds, he should have purchased 15 seconds of add time on the local TV station, with video showing the banner and a somber voice advising viewers to call the school principal and ask why he opposes the banner.

--rrfan

(To reply, click here.)

With regard to the 1st Amendment's Establishment Clause, Dellinger writes, "Government prayer, bad . . . private prayer, good." Where, pray tell, does Dellinger find a prohibition on "government" in the 1st Amendment? Of course "the government" can be petitioned for a redress of grievances, but the key word in the text is "Congress" -- not "the state" and not "the government". The amendment places a limit on the actions of Congress, not on "government" in general. And "Congress" means "Congress" -- it doesn't mean "the Executive branch" or anything else that isn't Congress.

--Tori_Fox-Hunter

(To reply, click here.)

The courts always have trouble with humor. They're serious places filled with serious people in serious clothes doing serious things. Judges demand - and expect -respect, and don't tolerate jokes. Even when they talk about humor, they fall back on Important Satirists like Jonathan Swift, and don't discuss the equally subversive, but much funnier, Moliere.

So Lenny Bruce gets convicted of obscenity and George Carlin gets banned from the airwaves, but the American Nazi Party can march in Skokie and Saving Private Ryan can go on network TV. And if you want to convince a court that your speech deserves protection, you're much better off if there's a serious purpose, no matter how odious, than if you're trying to be funny.

The thing is, the First Amendment doesn't say "Congress shall make no law . . . abridging the freedom of serious speech," or "core political speech" or anything like that. Still, just as Chief Justice Roberts interpolated a pro-drug message into a nonsense phrase, judges seem to interpolate seriousness language into the First Amendment. It makes me think that maybe, just maybe, we would have been better off if Ben Franklin had been involved in the drafting of the Bill of Rights, rather than the other, very serious Founding Fathers. He, at least, understood the value of a good joke.

--randy-khan

(To reply, click here.)

Both Walter and Dahlia are taking the position that it isn't at all clear that "Bong hits 4 Jesus" advocates for illegal drug use. Perhaps I'm being naive, but I personally can't think of anything that "bong hits" could be referring to except smoking marijuana. What else would a high school student possibly mean by that phrase? If Walter and Dahlia were right, it would mean that school administrators would be prohibited from making reasonable inferences about colloquial phrases, and only the most explicit endorsements of illegal activity could be prohibited. To take an example almost anyone would find offensive, what if a student wore a T-shirt depicting a hooded figure holding a noose with the phrase "string em up high", and claimed that its referring to a pinata; could that be prohibited pursuant to Walter and Dahlia's interpretation of the law?

--Aagcobb

(To reply, click here.)

Dellinger's argument that the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. […] This presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

--Dilan Esper

(To reply, click here.)

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