News Law and Policy

Scalia Thinks Roe Is “Utterly Idiotic”

Robin Marty

Scalia will always follow precedent when ruling on court cases.  Well, unless he doesn't like the precedent.

Supreme Court Justice Antonin Scalia isn’t one to pull punches, and if he’s angr, he’ll let you know. His latest rage? Someone misrepresented his “judicial philosophy.” He’s a complete constitutionalist and never uses his own personal views to decide cases.

Unless you are talking about abortion, that is. Because he thinks that’s just wrong.

Via Reuters:

One prominent exception to that is Roe v. Wade, the Supreme Court’s 1973 ruling that legalized abortion. He does not consider that binding precedent, he said, because it was wrong, remains controversial and is an issue better left to legislators than judges.

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What’s more, the court’s subsequent decisions on abortion are based on the judge-made theory of “substantive due process,” which guarantees certain fundamental rights like privacy. It’s “utterly idiotic,” Scalia said.

Scalia said he accepts being frequently on the losing side of Supreme Court decisions, because that’s what it takes to follow his philosophy of sticking to the letter of the law.

I assume this means he won’t be giving a speech praising the ruling at the 40th anniversary next January.

News Politics

Ohio Legislator: ‘Aggressive Attacks’ May Block Voters From the Polls

Ally Boguhn

Efforts to remove voters from state rolls and curb access to the polls could have an outsized impact in Ohio, which has seen a surge of anti-choice legislation under the state’s Republican leadership.

Ohio Rep. Kathleen Clyde (D-Kent) said she is worried about the impact of what she called “aggressive attacks” on voting rights in her state.

Ohio voters who have not engaged in voter activity in a fixed period of time, generally two years, are considered by the state to have moved, which then begins the process of removing them from their rolls through something called the “Supplemental Process.” If a voter fails to respond to a postcard mailed to them to confirm their address, they become “inactive voters.” If an inactive voter does not engage in voter activity for four years, they’re automatically unregistered to vote and must re-register to cast a ballot. 

Though other states routinely clean voting rolls, most don’t use failure to vote as a reason to remove someone.

“We have two million voters purged from the rolls in the last five years, many in the last four years since the last presidential election,” Clyde said during an interview with Rewire

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Ohio Secretary of State Jon Husted (R) dismissed concerns of the voter purges’ impact during an interview with Reuters. “If this is really important thing to you in your life, voting, you probably would have done so within a six-year period,” he said.

Ohio’s removal of voters through this process “is particularly problematic in the lead-up to the November 2016 federal election because voters who voted in the high-turnout 2008 federal election (but who did not vote in any subsequent elections) were removed from voter rolls in 2015,” according to an amicus curiae brief filed by the U.S. Department of Justice’s (DOJ) Civil Rights division in support of those who filed suit against Ohio’s law. 

The DOJ has urged the 6th U.S. Circuit Court of Appeals to reverse a lower court’s ruling in favor of the state, writing that Ohio’s voter purge violates the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.

Since 2012, at least 144,000 voters have been removed from Ohio’s voter rolls in its three biggest counties, Reuters reported. The secretary of state’s office said 2 million registered voters had been taken off the rolls in the past five years, though many had been removed because they were deceased.

Husted contends that he is just enforcing the law. “Ohio manages its voter rolls in direct compliance of both federal and state laws, and is consistent with an agreement in this same federal court just four years ago,” Husted said in an April statement after the ACLU of Ohio and Demos, a voting rights organization, filed a lawsuit in the matter.

In predominantly Black neighborhoods near downtown Cincinnati, “more than 10 percent of registered voters have been removed due to inactivity since 2012,” reported Reuters. The outlet found that several places where more voters had cast ballots for President Obama in 2012 were the same locations experiencing higher percentages of purged voters.

“Some of the data is showing that African Americans voters and Democratic voters were much more likely affected,” Clyde said when discussing the state’s purge of registered voters. 

Clyde has requested data on those purged from the rolls, but has been turned down twice. “They’ve said no in two different ways and are referring me to the boards of elections, but there are 88 boards of election,” she told RewireWith limited staff resources to devote to data collection, Clyde is still searching for a way to get answers.

In the meantime, many otherwise eligible voters may have their votes thrown away and never know it.

“[P]eople that had been purged often don’t know that they’ve been purged, so they may show up to vote and find their name isn’t on the roll,” Clyde said. “Then, typically that voter is given a provisional ballot and … told that the board of elections will figure out the problem with their voter registration. And then they don’t really receive notice that that provisional ballot doesn’t eventually count.” 

Though the state’s voter purges could continue to disenfranchise voters across the state, it is hardly the only effort that may impact voting rights there.

“There have been a number of efforts undertaken by the GOP in Ohio to make voting more difficult,” Clyde said. “That includes fighting to shorten the number of early voting days available, that includes fighting to throw out people’s votes that have been cast—whether it be a provisional ballot or absentee ballot—and that includes purging more voters than any other state.” 

This could make a big difference for voters in the state, which has seen a surge of anti-choice legislation under the state’s Republican leadership—including failed Republican presidential candidate Gov. John Kasich.

“So aside from the terrible effect that has on the fundamental right to vote in Ohio, progressives who maybe are infrequent voters or are seeing what’s happening around [reproductive rights and health] issues and want to express that through their vote may experience problems in Ohio because of these aggressive attacks on voting rights,” Clyde said. 

“From our presidential candidates on down to our candidates for the state legislature, there is a lot at stake when it comes to reproductive health care and reproductive rights in this election,” Clyde added. “So I think that, if that is an issue that is important to any Ohioan, they need to have their voice heard in this election.” 

Commentary Race

No Sense in Slaughter: ‘Law and Order’ Policing Is About Irrational Fear

Katherine Cross

The wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

“Senseless” is our favorite adjective to describe not just mass killings but all manner of murders. To most any person, regardless of class, race, or station, there is no sense to be found in slaughter. But this depth of unreason plunges further still with some crimes. Such is the case with the mass murder of Black Americans, performed in increments measured by police shootings. No sense, logic, or order can be imposed on something so inherently chaotic, so without reason or purpose.

Yet, countless white people on social media and mass media alike try to find a reason for the murder. He wore a hoodie. She didn’t follow instructions. He didn’t drop the toy gun. He twitched his leg threateningly. They shouldn’t have been in that neighborhood. She was playing her music too loud. They should’ve fixed their taillight. This apparent desire for justification satisfies not only the racist conviction that it is somehow acceptable for a Black person to lay dead from an officer’s sidearm, but also the “just world hypothesis” that too many of us remain addicted to: the false belief in a world where virtue is rewarded and vice is punished, where “everything must happen for a reason.”

To be sure, racist systems of power in the United States have methodically propagated the idea of Blackness as a threat that needs to be controlled, which is a twisted kind of logic unto itself. In this environment, however, where so many—particularly white people—have been weaned on the notion of Black criminality, the wholesale murder of Black men and women by police strikes with a kind of caprice, often driven more by whims, bigotries, and disordered fates than any sense in law enforcement or anything meaningfully tied to the actions of the victims.

As we search for answers in the wake of atrocities—in Dallas, Baton Rouge, St. Paul, and countless other cities—we can begin with this senselessness.

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This attempted analytical strategy is not a new endeavor. In writing about Nazi internment and concentration camps, for example, philosopher and political theorist Hannah Arendt strove to do the unthinkable: Find sense in a pit of murderous chaos. But it was precisely a lack of sense, she discovered, that was key to the experience the Nazis—and many totalitarians before and since—had tried to create.

There’s no small irony in my invocation of her to understand this epic, continually unfolding crime. Arendt’s contempt of Black youth movements toward the end of her life was breathtaking in its bitter and intellectually uncurious contempt; she, too, had revealed herself to be an anti-Black racist. But like so many people who indulge such prejudices, her more transcendental ideas—such as this one—endure even with her failings.

As Arendt wrote:

The world of the dying, in which men are taught they are superfluous through a way of life in which punishment is meted out without connection with crime, in which exploitation is practiced without profit, and where work is performed without product, is a place where senselessness is daily produced anew. (Emphasis mine.)

Her point was that the terror of the camp lay in its disconnect from logic. You might face punishment even if you did nothing wrong, either according to the rules of the camp, or a higher moral authority. Your labors were Sisyphean, their own punishment, and rarely serving some higher end. Even when they were practical labors, they were deliberately inefficient, meant to cause suffering rather than ensure the speedy production of some good. For Arendt, this was central to totalitarian life.

This was how you made human beings superfluous as human beings, as she put it. You removed all sense from their lives, rendered their labors fruitless, took the very thing that makes us human—meaningful activity and life through our work—and rendered it an engine of vile nonsenses. If nothing you do has any connection to your prosperity or well-being, then what really is the point of life but random thrashing?

Whether Arendt herself might have approved of this understanding of her theory or not, the “daily production of senselessness” has bled out of the camps of Europe and into the day-to-day practices of police forces around the world, especially in the United States. In police brutality, too, we see a world of unreason. Death has no connection to guilt or what one can be meaningfully said to “deserve.”

This is what makes the plaintive wailing of the “All Lives Matter” crowd so tone-deaf, especially when they veer in the direction of critiquing every breath of those who have been restrained from breathing freely. Consider Megyn Kelly’s unconscionable second-guessing of Lavish “Diamond” Reynolds, Philando Castile’s girlfriend, for not rendering aid to her dying partner outside of St. Paul, even as a police officer brandished a gun in her direction. Or CNN analyst Harry Houck, who said that the very fact Reynolds filmed the atrocity is cause to doubt both the sincerity of her affection for Castile and the man’s innocence. Each of these perversities is, of course racist; neither would happen if the victims in question were not Black, period. They are also attempts to impose order on what is inherently chaotic and without sense: the summary execution of innocent people, en masse, by the people whose very job is to maintain that vaunted “law and order.”

The unspoken corollary to all these excuses is always “therefore they deserved to die.” They didn’t put their hands up fast enough, therefore they deserved to die. They ran, therefore they deserved to die. They were walking in the “wrong” neighborhood, therefore they deserved to die. They made a Facebook post where they had a “thug” selfie, therefore they deserved to die. On and on and on.

It is here where discourses about “respectability politics” come into play—the idea that we as marginalized people should not treat “acting respectable,” as defined by those in our society with the most cultural capital, as a path to acceptance and liberation. Castile did everything right. He was gainfully employed, beloved at the school where he worked as a cafeteria manager—and his long history of being stopped by the police testified more to the racism of local police departments than any wrongdoing on his part. During this final traffic stop, he politely informed the policeman about his concealed handgun, as he is obliged to do by law. For doing everything “right,” he ended up dead from several shots to the chest.

This is not to suggest that it would be “logical” or “just” or “sensible,” of course, if all Black victims of police brutality were only those people with criminal records, who resist arrest or run, or who had weapons; those people are not somehow more “deserving” of death or abuse. And even if they were the sole victims of police violence, a similar senselessness would prevail—in a world where a minor infraction or a long-ago served sentence would still lead to summary execution, where police who have been able to capture even dangerous white suspects alive can only ever seem to put bullets in Black “offenders.”

This, in the end, is the reason. Black people are killed indiscriminately, no matter their job, their level of education, their erudition, their politeness, their criminal record or lack thereof, and so on.

Black Lives Matter—for all the unjust slanders hurled its way by politicians, police union bosses, and Twitter trolls—is actually an example of a profoundly dignified attempt to restore order in the best way possible. Its tactics of peaceful but highly visible protest demand better of us all, non-Black people of color and white people alike. It summons us to our better ideals, calling for the restoration of sense, and reason: the simple recognition that Black lives matter and should be afforded the full suite of human and civil rights. That requires structural change; it is not something one law can fix. It’s beyond the scope of body cameras, certainly.

BLM’s staunchly nonviolent ethic, and its humane approach to police—which unequivocally condemns recent attacks on officers in Dallas and Baton Rouge, while seeking justice for the victims of police—actually makes a better claim to being about “order” than all the defensiveness of the police, and their many paid defenders in the press. “Law and order” politics and policing have always been about irrational fear and hatred, never about order in the sense of creating a safe life of sensible and predictable outcomes connected to one’s actions. The sole “logic” to be found in all of this is being seen as a mortal threat because of the color of one’s skin, and this fact produces a special kind of terror.

All victims have been rendered superfluous as human beings, to use Arendt’s phrase. Black individuals live knowing that all of their efforts can come to nothing due to the caprice of a racist police officer’s bullet.

With such senselessness ruling the day, is it any wonder some will abandon all reason in response, as with the killings of police officers in Dallas and in Baton Rouge? That some may feel murder is all that can meet murder? The problem is indeed a lack of order, but not for the reasons many police chiefs and white twitterpaters may think; the “order” police currently uphold is one of utter chaos with no rhyme or reason behind it, save the fundamental irrationalities of racism and fear tinged by racism. There can be no order when mothers and fathers must counsel their children in the nearly vain hope that “good behavior” might save their lives from a police officer frightened by the color of their skin, when no right action or a life well lived is any insurance against such an ignoble death.

So is it a surprise when “the law,” a term synonymous with the police themselves, is increasingly not respected for its own sake? As Ta-Nehisi Coates points out in the Atlantic about Micah Xavier Johnson, the man who murdered five police officers in Dallas:

In the black community, it’s the force they deploy, and not any higher American ideal, that gives police their power. This is obviously dangerous for those who are policed. Less appreciated is the danger illegitimacy ultimately poses to those who must do the policing. For if the law represents nothing but the greatest force, then it really is indistinguishable from any other street gang. And if the law is nothing but a gang, then it is certain that someone will resort to the kind of justice typically meted out to all other powers in the street.

When you scaremonger about Johnson’s crimes, or about the need for “law and order,” this is all very much worth remembering. To many in this country, the police are simply the legal gang: vice by another name, tied to the coffers of the state, with only a gloss of virtue to separate it from the illicit variety. The murder of police officers remains criminal and tragic, both for all the obvious reasons, and because the realm of unreason and uncertainty they create is slowly consuming them as well, as Coates notes.

This is one of many reasons we must cease casting about for a just world and instead seek to create one—first by acknowledging the lack of justice in the one we have.

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