Supreme Court justices.(AP Photo/Pablo Martinez Monsivais)
My new Think Again column: “Howie Kurtz is going to work for Fox? How long has this been going on?”
I did not get to see the Stones this time around but I read in Mike Allen’s playbook that “Jagger recalled that when the Stones first came to D.C. in 1965, Lady Bird Johnson requested 'Jumpin’ Jack Flash.'” Quite a trick for LBJ (female version). After all, JJF was released in May, 1968.
And you know, in regards to David Gregory asking Glenn Greenwald if he should be arrested for aiding and abetting an illegal national security leak by reporting on classified information, isn’t it curious that neither Gregory nor any of his colleagues have ever asked that question of Bob Woodward? The latter brags about Bush administration officials showing him classified documents that he then describes in his books. How is what Greenwald does any different? How is it any different than what Barton Gelman did? It is just too sad that the guy who hosts the most important television news show in America is also the guy who willingly served as a back-up dancer for Karl Rove in a wig. And now this…
So I’m at the beach and I’ve got no new music to review except to say that I missed the show by Cecile McLorin Salvant at 54 Below on Tuesday, and I was reliably informed by a friend who did not that: “She’s really, she’s the best jazz singer I’ve heard in years. Amazing range, and she can sing just about anything from blues to ballads to Betty Carterish instrumental-type singing. Fantastically talented, and only 23.” Her album is called “Womanchild” and it’s on Mack Avenue. I first heard it on Terry Gross’s show and the superlatives appear justified. (Also, I’ve not yet been to 54 Below but people say good things.) I am hoping to see Junior Brown at the Stephen Talkhouse in Amagansett tonight, He’s always a lot of fun. If I were in town this weekend, I’d have loved to have seen the Summerstage “Big Star” tribute in Central Park tomorrow night. Maybe you will. Here’s the full schedule.
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Splenetic Justice: Justice Samuel Alito's Role on the Roberts Court
By Reed Richardson
Things we re-learned from the press this week about the Supreme Court: Chief Justice John Roberts really would prefer to pretend racism no longer exists, Justice Anthony Kennedy remains admirably sympathetic to the plight of gay and lesbian Americans seeking equality, and Justice Samuel Alito is still an asshole.
Now, this last observation is a little unfair to Alito. Not because he isn’t a asshole, he’s admitted that boorish and sarcastic public behavior has plagued him as far back as high school. It’s unfair because a Supreme Court Justice’s personal demeanor shouldn’t matter to the public when it comes to doing their actual job. And it’s also unfair because when doing his actual job, Alito is much, much worse than just an asshole.
Sadly, the establishment media has shown no interest in that story. In its portrayal of the Court’s dramatis personae, Alito is little more than a bit player. Instead, the lead roles of pro/antagonists are mostly filled by Justice Ginsburg and, occasionally, Justice Breyer, opposing the likes of Justice Scalia and Roberts, with Kennedy ping-ponging back and forth. This dynamic does merit a lot of attention, but not always. Roberts can sometimes surprise, as he did in his Obamacare decision last summer. Scalia, though usually a shamelessly partisan hypocrite, sometimes falls prey to his own “originalist” logic to side with the Court’s left wing. And while it’s true Justice Thomas still edges out Alito in rankings as the most conservative jurist on the Court’s bench, the former’s lack of influence and advanced age means the purest distillation of conservative jurisprudence on the Court today can be found with Alito.
Since his confirmation more than seven years ago, Alito has quickly become a sort of liberal’s worst-case scenario for the Court’s future, one where civil liberties are routinely circumscribed, women’s reproductive rights are rolled back, and corporations are consistently emboldened. Sadly, the press should have seen this coming. Alito’s judicial record prior to being nominated was rife with examples of nakedly aggressive rulings—many of which were later overturned—in service of the powerful over the powerless. But for the most part, the media treated Alito with kid gloves. This 2006 Center for the Media and Public Affairs study, for example, found that nonpartisan media ran three positive stories for every negative one during his nomination. His humble prostrating before the Senate Judiciary Committee convinced the Beltway conventional wisdom that his was a moderate legal viewpoint. Few in the press have come to realize how much Alito’s posturing was just a ruse, however. This blistering Washington Post op-ed, written only a few months after Alito’s confirmation, accurately predicted the dark path the new Roberts Court has taken in the intervening years. Maybe if it had been written by a pundit from one of the Sunday morning news shows, instead of Senator Ted Kennedy, its message would have gotten through to the “objective” media.
Sadly, this past week Alito has proved Kennedy's prescience once again. Indeed, perusing Alito’s dissent in the DOMA case is to peer into the arrogant mind of privileged class insulted by the notion that its definition of equality doesn’t suit everyone.
“In asking the Court to determine that §3 of DOMA is subject to and violates heightened scrutiny, Windsor and the United States thus ask us to rule that the presence of two members of the opposite sex is as rationally related to marriage as white skin is to voting or a Y-chromosome is to the ability to administer an estate. That is a striking request and one that unelected judges should pause before granting. Acceptance of the argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools."
This is an eye-opening passage, not the least for the incendiary analogies Alito uses. Suggesting same-sex partners are due the same marriage rights as opposite sex ones is tantamount to endorsing racist Jim Crow laws or sexist legal traditions, he seems to be arguing. To disagree, he complains, puts those who defend the status quo in the uncomfortable position of defending discrimination. But he betrays the true nature of his Lady Macbeth-like protestations later on in his decision, when Alito cavalierly dismisses the very foundations of same-sex marriage.
“The other, newer view is what I will call the ‘consent-based’ vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage."
“As least as it applies to heterosexual couples…?” Is Alito really not sure that gay people form loving bonds in the same way and for the same reasons as straight people? Are lesbians all being involuntarily paired up by their parents for arranged marriages and only he knows about it?! For someone who claims to understand popular culture, has he really never seen an episode of Modern Family? It’s won a whole bunch of Emmys, for crying out loud. The latent prejudice here is barely concealed. In his conclusion, though, he takes these biases and uses them to justify a blithe abandonment of the Court’s duty to, you know, make sure Congress’s laws are Constitutional.
“All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class—in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.”
So, Congress decided gay people have to deal with some “special burdens” when it comes to the state sanctioning their marriage. Tough luck, says Alito, his hand are tied. How a same-sex marriage wouldn’t qualify for equal recognition under a formula based on “economic units,” he doesn’t say, because obviously homosexuals don’t earn, spend, and get taxed on the same dollars as the rest of us straight folks.
Ironically, Alito’s judicial reputation has been scrutinized in the press recently for being perhaps too empathetic. During Sonia Sotomayor’s confirmation hearings, her remarks about being “a wise Latina,” occasioned the press to note that Alito too, during his nomination process, intimated that personal experiences would inform his Court decisions as well. But as this 2011 New York Times Magazine profile of Alito points out, this empathy has a decidedly self-referential ring to it.
“In fact, it’s lately from Alito that we get a window onto right-wing empathy on the court—and onto conservative instincts generally about who deserves our solicitude. Through it we see that Alito expresses feelings mostly for people who are a lot like him."
Thankfully, Alito’s establishment cri-de-coeur in the DOMA case was a dissent. For now, at least, the rock-ribbed social conservatism that he and the rest of the Court’s right-wingers share is tenuously being held in check by the Court’s liberal bloc and Justice Kennedy. But the legal tables are turned whenever the Court addresses other types of cases. Thanks to Alito, who replaced the moderate Justice O’Connor on the Court, the conservative bloc has scored one triumph after another, and increasingly it’s been in service of corporation-friendly organizations like the Chamber of Commerce. But because many of these cases are less high-profile, the press has paid little attention to a breathtakingly broad erosion of consumer protection and employee rights.
Case in point, the Court’s Vance decision from Monday. A seemingly run-of-the-mill civil lawsuit brought by a female employee who claimed her supervisor racially harassed at her workplace, Vance drew perfunctory coverage. But if the mainstream press had put the case in its proper context, the public might have learned that it was yet another in a long line of Robert Court’s assaults on workplace safeguards.
Leading this charge and writing the Vance opinion for the now standard 5–4 majority was Alito. In it, he cleverly argued that the harasser was technically not Vance’s supervisor because this man could not take “tangible employment actions” against her and so, voila! the employer, was not liable. Here, Alito effectively spun for the defendant a whole new legal loophole to could slip through. In doing so, he dismissed long-standing EEOC standards with a shockingly let-’em-eat-cake attitude toward real-life harassment.
“The vagueness of this standard was highlighted at oral argument, when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless the Government’s attorney’s first response was that the authority to make this assignment would be enough.” [italics mine]
Alito’s flippant dismissal of a threat of hundreds of hours of dealing with other people’s excrement and urine speaks volumes about his privileged perspective. (One wonders how many toilets Justice Alito has cleaned lately, or ever). And his willingness to simply rewrite employment law to suit his ideological whims betrays a cold detachment from reality, as does his convoluted skepticism toward Justice Ginsburg’s dissent.
“The dissent’s critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases, where an employee who cannot take tangible employment actions, but who does direct the victim’s daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent.”
In a deft unraveling of Alito’s murky, caveat-filled logic, Ginsburg bravely calls out the consequences of what he and the conservatives on the Court are doing:
“How concentrated must the decision-making authority be to deem those not formally endowed with that authority nevertheless “supervisors”? The Court leaves these questions unanswered, and its liberal use of 'mights' and 'mays,' dims the light it casts.”
[…]
“As a consequence of the Court’s truncated conception of supervisory authority, the [previous legal] framework has shifted in a decidedly employer-friendly direction. This realignment will leave many harrssment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment.”
That “dims the light it casts” line had to leave a mark.
Sadly, the press did not engage the public in a broader version of the debate happening between Alito and Ginsburg. Indeed, it’s somewhat fitting that the back-and-forth about our government’s secretive nature has coincided with this week’s final flurry of activity from the Supreme Court. In terms of the public’s knowledge about what it does, how it does it, and why, the Court enjoys an element of relative invisibility that could easily rival the NSA’s. The Supreme Court justices rarely accede to interviews in the mainstream press, its chambers remain stubbornly free from any live broadcast media, even the anachronistic distribution of its major decisions calls to mind an earlier, less transparent era.
That the Supreme Court still manages to operate in this remarkably opaque manner is not healthy for our democracy, however. The dozens of decisions it hands down each year exert broad influence on American society and politics, perhaps more so than any other time in history thanks to our dysfunctional Congress. Part of this secrecy is due to resistance on the part of the Court, no doubt, but an equal measure of blame must be laid at the feet of an incurious media. Yes, major cases do garner the live-from-the-Courthouse-steps, breaking-news treatment, as the Voting Rights Act and same-sex marriage cases did this week. But a feast-or-famine approach to covering the Court means a vast majority of rulings slip by unnoticed. Yet these unheralded cases, over time, can cumulatively change the nature of our democracy just as assuredly as a handful of front-page ones.
This Roberts Court has pretty clearly plotted the direction it wants to take the country—backwards, by viciously undoing almost all of the progressive policy gains of the 20th century. Alito, who, at 63 years old, will likely still be on the bench long after Scalia and Thomas are gone, figures to be key in that effort. That’s why it’s imperative his radical ideological agenda gets a full airing in the press now. So that when the next Republican president points to him as a model for a future nomination to the Court, the public really understands what they’d be getting—something much, much worse than just an asshole.
Contact me directly at reedfrichardson (at) gmail dot com. Also, I’m on Twitter here—(at)reedfrich.
Editor's note: To contact Eric Alterman, use this form.
After the Supreme Court's decision on DOMA, what's next for the LGBT movement?
