Because I was otherwise obsessed, I missed noting yesterday a true landmark in law and ethics. It was that date in 1954 when a unanimous the Supreme Court handed down the unanimous decision in Brown v. Board of Education of Topeka, ruling that racial segregation in public schools was unconstitutional. Linda Brown, a young African American girl had been denied admission to her local elementary school in Topeka, Kansas, because of the color of her skin.
Written in 1896 as the KKK roamed the South, the SCOTUS ruling in Plessy v. Ferguson held that “separate but equal” accommodations in railroad cars conformed to the 14th Amendment’s guarantee of equal protection. Plessy was interpreted as justifying segregation in everything from buses to water fountains to elementary schools. The white school Brown attempted to attend was far superior to her the segregation-mandated alternative and miles closer to her home, so The National Association for the Advancement of Colored People took up Linda’s cause. Thurgood Marshall led Brown’s legal team, and on May 17, 1954, Plessy was overturned after 58 years as “the law of the land” despite the siren call of stare decisus. The opinion written by Chief Justice Earl Warren declared that “separate but equal” was an unconstitutional doctrine in ringing terms: “We conclude that, in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” A year later, the Supreme Court published guidelines requiring public school systems to integrate “with all deliberate speed.”
1. Prudent and responsible, if not courageous. Speaking of SCOTUS, newly confirmed Justice-in-Waiting Ketanji Brown Jackson sat for an interview by the Washington Post and was asked about the leak of Justice Alito’s draft opinion in the Dobbs abortion case. Conservative media was triggered by this section:
Q: What was your response when you when you saw the draft leak [of a Supreme Court opinion that would strike down Roe v. Wade]?
A: Everybody who is familiar with the court and the way in which it works was shocked by that. Such a departure from normal order.
Q: Do you think it was a good thing or a bad thing?
A: I can’t answer that.
Q: What do you think about peaceful protests outside of Supreme Court justices’ homes?
A: I don’t have any comment.
Charles Cooke at the National Review writes, “This ranges from somewhere between cowardly and sinister, much like the failure of the justices to issue a joint statement that echoes the chief justice’s condemnation of the leak and statement of determination to identify the leaker, and that condemns the protests, which violate federal law.”
Wrong. SCOTUS justices should not issue opinions on such matters. Her statement that the leak was a breach of the normal order was factual, and breaches of normal order in any institution are unethical. She was right to go no further. As for the demonstrators, some of them may be arrested at some point, and a statement by a Supreme Court Justice regarding their conduct could interfere with a fair trial.
Her responses give me more reason to trust Jackson’s judgment, not less.
2. Why didn’t Instagram take down this misinformation/disinformation by actress Viola Davis? [Pointer: Michael Ejercito]
It’s a rhetorical question, of course. This is more of what social media and Big Tech regard is GOOD misinformation: painting the legal system and law enforcement as racist, you see, is good.
Viola Davis is an excellent actress, but the meme is factually and legally crap. I don’t recognize all of those faces, but the omission of the crucial information regarding which individuals resisted arrest makes the thing per se misleading. Among the faces I do recognize, Mike Brown was not murdered based on a jury’s verdict, so stating he was is a lie, straight up. So is the same characterization of Breonna Taylor‘s accidental shooting: I recognize her.
3. Translation: OK. We got caught in our lie. Never mind!”
4. And more judicial review: Aw, Jamelle Bouie won’t like this one bit!
Los Angeles Maureen Duffy-Lewis ruled that the California law requiring all corporations to have women on their boards is unconstitutional. The law that would have required boards have up to three female directors by this year violated the right to equal treatment. I thought it was clear from the start that this law was unconstitutional, and I’m pretty sure I wrote that here in 2018 when the law was passed. The conservative legal group Judicial Watch sued, claiming it was illegal to use taxpayer funds to enforce a law that violates the equal protection clause of the California Constitution by mandating a gender-based quota.
In the Court’s 23-page verdict, the Court specifically found that “S.B. 826’s goal was to achieve general equity or parity; its goal was not to boost California’s economy, not to improve opportunities for women in the workplace nor not to protect California taxpayers, public employees, pensions and retirees.” Further, the Court found that “putting more women on boards demonstrated that the Legislature’s actual purpose was gender-balancing, not remedying discrimination.” “There is no Compelling Governmental interest in remedying discrimination in the board selection process because neither the Legislature nor Defendant could identify any specific, purposeful, intentional and unlawful discrimination to be remedied,” Judge Duffy-Lewis said.
Now watch California try to fight the decision all the way to the Supreme Court, knowing that it will lose, but in full confidence that Democrats will be able to use the defeat to continue to try to undermine the institution.
5. Utter incompetence has its consequences! Senate Democrats canceled a Senate Homeland Security and Government Affairs Committee hearing they had scheduled to learn about the new “disinformation board.” The head of the Orwellian device, Nina Jankowicz , would have to testify, and after her embarrassing self-posted videos went viral, Senate Democrats decided that the May 10 hearing on “disinformation, misinformation, and malinformation” would give Republicans a chance to highlight the absurdity of her appointment. Jankowicz also falsely labeled Hunter Biden’s laptop a “Russian influence op,” and Democrats don’t want that topic raised either.
Both the creation of the Disinformation Governance Board and the appointment of Jankowicz to head it are signature significance demonstrating an intent to censor, incompetence in staffing, and contempt for the intelligence of the American public, all reflecting the undeniable ineptitude of the Biden Administration. The news media will, of course, bury the debacle as well as it can, but the line “You can run but you can’t hide” has seldom been more appropriate.