Remember Abe Fortas? Clarence Thomas Doesn't

Those of us of a certain age can vaguely recall, if we try, the career of jurist Abe Fortas, who was a star in the judicial firmament thanks in large part to his friendship with Lyndon Johnson, who appointed him to SCOTUS in 1965.

Fortas streaked across the judicial sky like a meteorite, and burnt out just as fast. When Johnson in 1968 took the unusual-at-the-time step of trying to elevate him from being just another justice to the Chief Justice position on the retirement of Earl Warren, the shit hit the fan.

Powerful Dixiecrat members of the US Senate, including the powerful racist and anti-Semitic (Fortas was Jewish) chairman of the Judicial Committee, Mississippi's James Eastland, along with help from our old good buddy Strom Thurmond, put the skids to the appointment.

It seems that Fortas had accepted some $15,000 for nine speaking engagements at the American University School of Law. These were paid for not by university funds, but through a "business interest" that represented 40 businesses. Thurmond in particular went ballistic, saying that cases involving these companies "might" come to The Court and that Fortas "might" not be objective.

It sounds like pretty thin stuff now, but back then apparently it wasn't. Fortas was not only denied the Chief Justice job (it went unfilled until the incoming president, Tricky Dick Nixon, appointed Warren Burger) but the next year, after it was discovered that he had taken at one time a $20,000 retainer from the family foundation of a Wall Street banker, he was in trouble again. Even though when the banker's case eventually came before the Supremes Fortas recused himself, he was still ultimately forced to resign from the court in shame.

Shame. That's a powerful motivator, but apparently it doesn't work any more. At least not when it comes to the Supreme Court. Let's look at Clarence Thomas.

Thomas, while sitting on the court, has become a poster child for not only judicial activism of a rightwing nature, but also bad judicial ethics. According to William Rivers Pitt's description, Thomas has

turned his position on the court into a license to print money for himself, his family, and a few choice friends.
Conservative corruption is nothing new in Washington, but Mr. Thomas has taken the practice to bold new heights, and finally, people are beginning to sit up and take notice. Thomas has been playing fast and loose with judicial ethics for a long time now, and though Supreme Court Justices are not technically beholden to judicial rules of ethics, his behavior has become so egregious as to warrant deep attention, and in my opinion, removal from the high court.

For example, Thomas has a bust of Lincoln (why I do not know, since everything Lincoln stood for appears to be antithetical to what Thomas seems to believe) given him by the leader of the American Enterprise Institute in 2001. The bust was worth 15,000, yet when in the intervening years the Institute filed briefs in SCOTUS cases, Thomas refused to recuse himself.

When you add the half million dollars his wife got to set up her Tea Party, the fees for speaking at rightwing meetings, etc etc., the list adds up to some pretty shameful behavior.

Not that old Uncle Clarence feels any shame. He's been workin' in the white folks house for so long that he looks down on the rest of us out here in the backwaters of the Great Unwashed. If we can't get our own share of the millions of dollars being doled out from the vast resources of the vast rightwing conspiracy, well, shucks, that just our own damn faults...

It's time for Clarence Thomas to go. He is an embarrassment to the nation, to the court, and to the law profession.

"Forgotten Men" of Black History 1: Homer Plessy

He's not really "forgotten": His names lives on in a weird kind of "infamy" -- after all he was on the losing side in the infamous Plessy v. Ferguson Supreme Court case which officially established the segregationist "Separate but Equal" doctrine of race relations in this country that held sway from 1896 until it was reversed and repudiated by Brown v. Board of Education in 1954.

But just who was Homer Plessy?

Home Plessy was born in New Orleans in 1862 and grew to adulthood in the Reconstruction Era, when black people could sit anywhere they wanted on the streetcars, marry whomever they pleased, and attend integrated schools. But that was with the protection of the US Army, which enforced on a reluctant defeated-but-unbowed South equal rights and protections for former slaves and blacks in general.

But with the Compromise of 1877 -- known forever after as the Corrupt Bargain -- that installed Rutherford B. Hayes in the White House despite the fact that he was the loser in the popular vote (sound familiar, anyone?), Reconstruction ended, the Yankee armies left, and the states of the former Confederacy were free to go back to their segregationist ways. It didn't take long to resegregate the schools, the marriage laws, and especially, in Plessy's case, the trains.

Home Plessy was, according to the official record, 7/8 white and 1/8 black, or, in the parlance of the day, an "octoroon". There is some disagreement over the exact percentages, but for this case, that doesn't matter. What does matter was that he had that infamous "one drop of Negro blood" and was therefore considered to be black. As in Not White. As in You Have to Sit in the Back of the Bus. Or, in Plessy's case, in a whole different train car.

In 1890 the City of New Orleans had, belatedly when considered with the rest of the south, instigated the separate train car rule. The Citizens Committee of New Orleans recruited Plessy to test the law. Because he looked white, he could purchase a ticket for the "whites only" car without any protest. He could even ride the whites only car without fear of being molested, because he looked white:

But of course under the law he was Not White. When the conductor asked him if he was "colored" he admitted that he was and allowed himself to be arrested and charged. The case was a cause célèbre at the time, and culminated in the Plessy v. Ferguson SCOTUS decision that enshrined in US law the racist doctrine of Separate but Equal. Only one justice, John Marshall Harlan of Kentucky, from ironically a slaveholding family, dissented from the majority. But man oh man, what a dissent:

The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved...
If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law. The thin disguise of 'equal' accommodations for passengers in railroad coaches will not mislead any one, nor atone for the wrong this day done.

The problem as Harlan pointed out so eloquently, was that the separate facilities for black people were never, in any way, shape or form, equal to those of the whites. I grew up in rural Oklahoma, and attended segregated schools. The white kids had a nice one-story brick neo-colonial school while the black kids -- on the other side of the tracks, naturally -- had an old three-story firetrap that looked like it had already been condemned before the Civil War...

Sidebar: In a weird kind of synchronicity, John Marshall Harlan had a grandson and namesake, John Marshall Harlan II, who also served on the US Supreme Court, from 1955 to 1971. Illness forced him to retire from the court, which then allowed Richard Nixon to appoint William Rehnquist to the bench. And it was the same William Rehquist who had stated in a memo in 1952, when he was clerking for Justice Robert Jackson: "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed.... To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

But enough digression. Let's get back to Plessy.

But actually, there isn't much left to tell. After the famous court case, he faded back into relative obscurity, and he lived out the remainder of his life in New Orleans. He died in 1925 at the age of 61. Finally, in 2009, a historical marker was erected at the site of his arrest:

Justice Kennedy, You Fucked Up

SCOTUS today issued its long-awaited decision on the controversial Mojave Desert Cross.

That cross, as you will recall, was erected on public land back in the 1930s as a putative "war memorial" -- but since other religions were banned from erecting symbols of their belief along with the cross, it was nothing more than government sponsorship of Christianity.

I've commented before on this particular piece of crap. And now, with today's 5-4 split decision, the high court says that it's just fine to have it there.

Predictably the Four Fascists (Scalia, Thomas, Alito and Roberts) were in the majority, joined by sometime swing vote Kennedy:

"Here one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten," Justice Anthony Kennedy wrote.
In dissent, Justice John Paul Stevens agreed that soldiers who died in battle deserve a memorial to their service. But the government "cannot lawfully do so by continued endorsement of a starkly sectarian message," Stevens said.
. . .
Kennedy, who usually is in the court's center on church-state issues, suggested there may have been no problem in the first place.
"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm," Kennedy said.

Note to Kennedy: Nobody ever said it did, asshole. And evocative as it may be of all those crosses in military cemeteries, if you look closely you'll see that those crosses are joined by stars of David and other symbols of religion, and they all denote the religious beliefs of the former inhabitants of the bodies buried beneath them.

I'm glad to see that Sotomayor came down on the right side of this issue.

And this is one more reason why we'll miss John Paul Stevens.

The Mojave Cross

I know, it sounds like a western movie title, but a battle is raging in California's Mojave Desert over a cross that was erected as a "veterans memorial" by the VFW back in 1934.

And there it stood mutely for a number of years, out of sight and out of mind.

There was only one small problem with that: It was erected on public land, in what is now the Mojave National Preserve. And, to make matters worse, no other religious group has been "allowed" to erect their own religious memorial on the site.

Okay, fast forward a few years, and now the whole issue has landed squarely in the robed laps of The Supremes, who agreed to hear Salazar v. Buono this coming term.

As a member of several veterans groups (all of them progressive in nature -- I would never join VFW or the American Legion -- nor would they have me, as I think you all could have guessed), I get on some pretty weird email threads.

And today some joker sent me a breathless missive wailing about the tearing down of this symbol of veterans' sacrifices:

OK Folks. Take about 6 minutes and watch this and see what you think??? Amazing how off-base the courts and government can get!!!!!!
THERE HAVE ONLY BEEN AFEW THOUSAND HITS ON THIS VIDEO. IT NEEDS TO BE SEEN BY MANY, MANY MORE PEOPLE. PLEASE SPREAD IT AROUND TO YOUR ENTIRE ADDRESS BOOK. TO THINK ONE INDIVIDUAL, JUST ONE, CAN TAKE A CASE LIKE THIS TO THE CA SUPREME COURT AND GET A HEARING.
WE SHOULD DO EVERYTHING WE CAN TO PREVENT THIS MEMORIAL FROM BEING TORN DOWN.
ACLU insanity EVERY AMERICAN SHOULD SEE THIS VIDEO.
I cannot believe how this can happen in our country....wait until you hear the reason the complaint was started and what it has turned into....

I guess nobody told this asshole that typing in ALL CAPITALS is shouting...But maybe that's what he meant...

Anyway, here's the video:

Note the presence of those slick fuckers from the so-called Liberty Legal Institute, an extremist Religious Right organization, and the smooth production values of this video. Aside from the lies and mudslinging against the ACLU, though, the worst part of it that Liberty has absolutely no qualms about using those ancient veterans, cynically manipulating them into believing that this is about veterans. "A literal slap in the face," one of the Liberty fuckers calls it.

This case, with its abrupt turns and attempts at legal obfuscation, is confusing enough for legal scholars (go ahead and read the summary), let alone the general public. Which is why it's really easy to confuse people and get them to believe something that Liberty wants them to believe.

And finally, it looks as though this will be the first "establishment clause" case that Sotomayor will hear. Let's hope that she's more liberal than she appeared in those "show trial" hearings last week.