Sunday, December 20, 2015

How the Fearmongers Stole Christmas

      With the United States at the bottom of the nation’s worst ever economic depression, a newly elected president summoned Americans to be brave and resolute. “The only thing we have to fear,” Franklin D. Roosevelt said in his inaugural address in March 1933, “is fear itself.” FDR went on to show the same determined fortitude as he put the United States at the head of a worldwide alliance that defeated Nazi Germany and Imperial Japan.
      One by one, FDR’s successors in the White House have been called on just as he was to be brave and resolute in confronting dangers at home and abroad. History can debate their decisions perhaps: Truman in dropping the atomic bomb; Kennedy in defusing the Cuban missile crisis; or the first Bush in rescuing Kuwait and then stopping short of Baghdad. But these and other presidents all understood the wisdom of Theodore Roosevelt’s famous admonition to speak softly but carry a big stick.
      The current crop of Republican presidential hopefuls spread rather than confront fear and confuse bravado with courage and swagger with fortitude. With the lone wolf-style terrorist attack in San Bernardino fresh in mind, the overriding message from the Republican debate last week [Dec. 15] was for Americans to be afraid of ISIS, the self-styled Islamic State. Texas Sen. Ted Cruz called ISIS “the most sophisticated terrorist organization” the United States had ever faced. Former Florida governor Jeb Bush, supposedly one of the sensible ones in the bunch, said that the United States “must destroy ISIS before ISIS destroys us.”
      The butchers of Raqqa may be sophisticated in the use of social media, but they lack the organizational skills that their jihadist rivals in al Qaeda showed in the September 11 attack in 2001. They can capture Americans and other Westerners and murder them on camera. They can conspire with supporters or inspire them to carry out terrorist attacks. Note, however, that the San Bernardino terrorists, Syed Farook and his wife Tash Malik, apparently were inspired not by ISIS but by the al Qaeda cleric Anwar al-Awlaki.
      In any event, ISIS poses no existential threat to the United States. ISIS cannot destroy the United States, but it can lead Americans to betray American principles. Thus, Republican presidential candidates call for closing the door to refugees fleeing the Syrian civil war, in shameful imitation of the United States’ craven policy toward Jewish refugees at the start of World War II. The GOP frontrunner Donald Trump goes a step further by proposing to ban all Muslim immigrants and dares to liken his proposal to the disgraceful internment of Japanese Americans during World War II.
      Politicians naturally pander to public hysteria, but the panic was fed last week by a respected legal academic, Eric Posner of the University of Chicago Law School. Writing in the emagazine Slate, Posner called for making it a crime to view websites that “glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS,” or to distribute images from such sites or encourage people to access such sites. The penalties for violations would start with a government letter for a first offense but would escalate to prison sentences.
      Posner acknowledged some practical difficulties. As one example, he would make exceptions for bona fide journalists and researchers. But Posner batted away any concerns about freedom of speech. He approvingly noted that the government punished Southern sympathizers during the Civil War, anti-draft protesters during World War I, and Nazi sympathizers during World War II. None of these examples was anything for the United States to be proud of.
      The country is at war, Posner writes, and, yes, it is a war of ideas. But the great justice Oliver Wendell Holmes Jr. answered that concern in his famous dissent in Abrams v. United States (1919), one of the discredited World War I cases. The First Amendment presumes that truth will emerge from a free market in ideas, Holmes explained. “That at any rate is the theory of our Constitution,” he wrote.
      Apart from any legal niceties, banning jihadist websites plays to the enemy’s view that the United States is at war with Islam. As the young commentator Jon Green notes on America Blog, ISIS and other anti-American Muslim leaders charge the United States and the West generally with hypocrisy in touting our freedoms but failing to extend them to Muslims. Green mockingly suggests that Posner’s article is a valuable recruiting tool for ISIS, so perhaps it ought to be censored.
      More ominously, too many Americans have been feeding the ISIS narrative by open expressions of Islamaphobia — not just loudmouthed crazies at public events but even government officials. In a telling episode last week, a rural county in Virginia shut down its schools for a day after word spread that a teacher in a class on world religions had had her students write a verse from the Koran in Arabic calligraphy as a classroom exercise.
      The widespread intolerance toward Muslims clashes discordantly with the spirit of the Christmas season. And President Obama used his end-of-year news conference to echo FDR’s message from eight decades earlier. Americans could best confront ISIS, Obama declared, by “refusing to be terrorized.” ISIS is an enemy to be reckoned with, not to be feared. And Pogo's admonition seems to apply: “We have met the enemy, and he is us.”

Sunday, December 13, 2015

Hurdles for Changing "One Person, One Vote"

      The now famous “one person, one vote” rule for reapportionment and redistricting case stems from a Supreme Court decision in 1963 authored by Justice William O. Douglas. With the opinion still in the drafting stage, one of Douglas’s clerks suggested changing the phrase to “one voter, one vote,” according to an account by historian Douglas Smith in his book On Democracy’s Doorstep. Douglas stuck with what he had written..
      In the 50-plus years since, state legislatures have all but universally followed that phrasing to redraw district lines on the basis of total population, not voter population. But now the Supreme Court is being asked instead to require that state or municipal governments equalize legislative districts on the basis of the number of eligible voters, not on total population.
       The argument by the Texas plaintiffs in Evenwel v. Abbott would result in a political sea change benefiting Republican and rural areas and disadvantaging Democratic and urban areas with larger numbers of children, disenfranchised felons, and non-citizens, whether documented or not. The argument seems likely to fall short, given the evident opposition from liberal justices and the limited interest among conservatives. But even a limited ruling recognizing states’ discretion to use voter instead of total population could create the potential for more mischief in the already seamy political process of legislative redistricting.
       The two Texas plaintiffs, Sue Evenwel and Edward Pfenninger, live in East Texas state Senate districts that have significantly larger number of eligible voters than the average Senate district. Their attorneys argue, in a lawsuit engineered by a conservative legal gadfly, that even though the districts are roughly equal in total population, their votes have less weight than those of voters in districts with fewer eligible voters.
       The lawyers base their case in part on a Supreme Court decision, Burns v. Richardson (1966), that allowed Hawaii to use the number of registered voters instead of total population to draw state legislative districts. The majority opinion, written by Justice William J. Brennan Jr., treated registered voters as an acceptable alternative to total population because of “the concentration of military personnel and other transients” on Oahu, Hawaii’s most populous island.
      Some 35 years later, Justice Clarence Thomas called in a municipal redistricting case from Houston for the Court to clarify the meaning of the “one person, one vote” test. Plaintiffs in Chen v. City of Houston (2001) complained, just as the Evenwel plaintiffs do now, that the equal-population districts were substantially unequal in terms of citizen-voter age populations. Thomas was alone in calling for the Court to hear the case. “[A]s long as we sustain the one-person, one-vote principle, we have an obligation to explain to States and localities what it actually means,” he wrote.
      Thomas got his wish when the Court agreed in late May to hear the new Texas case. The suit is being bankrolled by the so-called Project on Fair Representation, an organization that Edward Blum founded and has used to mount previous Supreme Court legal challenges to affirmative action and the federal Voting Rights Act. Conservative legal groups filed amicus briefs supporting the proposed mandate to use voter population, while liberal and traditional civil rights groups argued for total population as the customary standard.
      Apart from any partisan considerations, the plaintiffs in the new case are going up against constitutional text, historical tradition, and practical difficulties. The Constitution uses total not voter population to apportion seats in the House of Representatives among the states. In oral arguments, Justice Elena Kagan asked the plaintiffs’ lawyer, William Consovoy, how the Constitution could require total population in one place but prohibit that standard in another.
       Justice Ruth Bader Ginsburg pressed Consovoy to similar effect by asking whether states had been violating the Constitution by counting women in apportioning House seats before women gained the right to vote with the 19th Amendment in 1920. To both questions, Consovoy had no better answer than to say, with no logical support, that intrastate legislative districting is different from the apportionment of House seats among states.
      The population figures used for drawing district lines come from the U.S. Census Bureau, but the full-scale every-ten-year Census counts people, not eligible voters. The eligible-voter population figures are less reliable because they come from the less rigorous American Community Survey, which is based on sampling rather than a complete count. In its argument, Texas defended the state’s right to use either total population or voter population, but a leading academic expert, Stanford law professor Nathaniel Persily, argued strongly in a friend-of-the-court brief that the voter population figures are not good enough, even for government work.
      Chief Justice John G. Roberts Jr. signaled his support for counting voters, not total population. “It is called one person, one vote,” Roberts said at one point. “That seems designed to protect voters.” Justice Samuel A. Alito Jr. also seemed likely to side with the challengers. Thomas asked no questions, as usual, but his view seems indicated from his previous call to consider the issue.
      Oddly, Justice Antonin Scalia asked no questions of any of the three lawyers. Smith, who attended the argument, said he was “surprised” that Scalia and the other conservatives were not more engaged in the plaintiffs’ argument. And the effect of their position, he said, would be “staggering” in political terms. “It would ironically return power to the rural areas that had all the power” before the reapportionment revolution, Smith said.

Sunday, December 6, 2015

Will Black Lives Matter for Justices?

      Racial tensions had been increasing on the University of Missouri’s campus for weeks as black students complained of what they regarded as the administration’s failure to deal with a rash of anti-black incidents. But it took a threatened strike by Mizzou’s football team last month to force university president Timothy Wolfe to resign.
      African Americans comprise about 7 percent of the campus’s 35,000 students, but those numbers were not enough to prompt a response until the predominantly African American gridiron squad massed in biracial solidarity. “If you look at black undergraduate men, they could do very little in defense of themselves, given their small numbers,” Shaun R. Harper, director of the Center for the Study of Race and Equity in Education at the University of Pennsylvania, told the Washington Post. “Given the large number of black men on the football team there, they can do something and they did something.”
      The Supreme Court returns to the issue of race-conscious university admissions this week [Dec. 9] against the backdrop of a flurry of racial protests at campuses all across the country. Traditional civil rights groups say the events underscore the reality that African American and Latino students continue to feel isolated on predominantly white campuses even as their numbers increase somewhat. “No one can dispute that race still matters on campuses around the country,” says Marisa Bona, regional counsel for the Mexican American Legal Defense and Educational Fund (MALDEF).
      Yet there is also some fear on that side of the case that the justices may react negatively to campus debates that dig up old historical wounds and at times seem to threaten academic freedom. “The justices may think some of this is overblown,” says Sherrilynn Ifill, president of the NAACP Legal Defense and Educational Fund. But Ifill says the court should view the debates as healthy. “That’s what universities are designed to do,” she says.
      The justices take up the issue in a second look at what proponents says is the limited use of race in admissions at the University of Texas’s flagship Austin campus.  In the court’s first ruling, Fisher v. University of Texas (2013), the court voted 7-1 to require the Fifth U.S. Circuit Court of Appeals to reconsider its decision upholding the university’s admissions policies. In an opinion by Justice Anthony M. Kennedy, the court held that the constitutional standard of strict scrutiny requires federal courts to closely examine how admissions policies operate in practice. The appeals court had gone wrong, Kennedy said, by deferring too much to the school’s description of the process.
     The appeals court upheld the admissions policies a second time. The court’s conservative bloc may now feel the need to be more direct in narrowing any role for race in college and university admissions. The lawyers challenging the policies on behalf of Abigail Fisher, an unsuccessful white applicant for the entering class of 2008, insist that that the use of race “must be a last resort — not the rule.” Some of the conservative groups on their side go further and want to bar any consideration of race whatsoever, a position long advocated by conservative justices Antonin Scalia and Clarence Thomas.
      The Austin campus reflects the rapid growth of Texas’s Latino population; Hispanics comprise nearly 20 percent of the student body, but African Americans only 4.4 percent — down slightly from a year ago. Those numbers are as large as they are in part because of the so-called Top Ten Percent law adopted in the late 1990s, which guarantees admission to the top 10 percent of the graduating class of any public high school in the state.
      That law increases minority admissions simply because most schools in Texas are identifiable as predominantly white, black, or brown. UT says its limited use of race helps ensure “intra-racial diversity” by allowing admission of minority students from predominantly white schools who fall below the 10 percent threshold in their class.
      Ifill endorses that goal because it presents a more complete picture of demographic diversity to all UT students. “I want them to know that not all African American students come from the Third Ward in Houston,” she says. “I want them to know that there are Latino students who don’t speak Spanish.”
      The number of minority students admitted through the race-conscious procedures is relatively small, but UT’s lawyers contend the policies help ensure a “critical mass” of minority students not just overall but in specific departments and programs. At the first round of arguments, Chief Justice John G. Roberts Jr. pressed UT’s lawyer on his inability to precisely define “critical mass.” In an online commentary this round, Richard Sander, a UCLA law professor critical of racial preferences, says universities seeking to use race-conscious admissions should be required to show just how far they have to go to meet the “critical mass” goal.
      The Missouri experience indicates that “critical mass” is an inevitably elusive concept. A decision imposing an unrealistic burden on schools to defend race-conscious admissions could have a dramatic impact on minority enrollments in states with nothing comparable to Texas’s Top Ten Percent law.
      Kennedy has never voted to uphold race-based admissions. But Ifill sees his critical vote last term in upholding use of the Fair Housing Act to break down residential segregation as recognizing “some role” for race consciousness in government policies. All eyes will be on Kennedy during the arguments on Wednesday as he is likely to hold the pivotal vote in this case too.