I haven’t been following the buildup to the Roberts hearings closely, but today, “via Bitch PhD”:http://bitchphd.blogspot.com/2005/09/and-theyre-off.html, I see this analysis from the NYRB:
Roberts was in favor of limiting the progress of African-Americans in participating in the political process and of making far-reaching changes in the constitutional role of the courts in protecting rights. … Roberts conceded that the equal protection clause of the Fourteenth Amendment could pose a formidable barrier to legislation intended to strip the federal courts of jurisdiction over cases involving school desegregation. But, he noted, the problem might be surmounted, since strict scrutiny would be applied only if there were “racial classification,” and the legislation in question would only classify cases by type, i.e., not “race” but “school desegregation.” Giving state courts the final say over school desegregation, he added, *would not involve unequal treatment because white officials as well as black groups would lack the right to appeal*. … Nowhere in any of the memos that have been made available did John Roberts acknowledge the effect of the many years of disenfranchisement on black citizens. Instead his concern was about the effect of an imagined quota system on whites, a concern that twenty-five years later has proved to be groundless. (Emphasis added.)
I’d be interested to see the original text that this paraphrases. It looks like it was just lifted directly from Anatole France: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.” Or sue under the fourteenth amendment. It’s hard to imagine someone with an education like Roberts’ writing that sentence and not immediately thinking of France’s epigram. Maybe he smirked.
{ 25 comments }
y81 09.13.05 at 9:53 am
As an educated person, why wouldn’t Roberts have smiled ruefully, acknowledging the force of France’s statement but still sure that he was, ultimately, right? Do the liberals who support school busing but send their children to private school smirk, or acknowledge ruefully that life is difficult. I certainly hope it’s the latter.
Jeremy Osner 09.13.05 at 10:35 am
Acknowledging ruefully that life was difficult, Schultz dictated the order to lay off a quarter of his 3,000 employees.
Governor Jenkins sighed and said, “Well we must admit life is difficult” as he signed his 50th order of execution that year.
“Life is difficult — no two ways about it,” President Cornysen was thinking. And he pushed the button.
wcw 09.13.05 at 11:41 am
Evidence indicates that his expression likely ranged from an evil chuckle to a smirk.
A man who grows up privileged in Michigan-bordering northern Indiana and attends Harvard does not write “War Between The States” instead of “Civil War” or, for that matter, clerk for a pill-popping Plessy proponent unless he is somewhere between a secret Klan member and a William F. Buckley racist.
Like Rehnquist, his power to oppress poor black folks will be circumscribed by the law, but like Rehnquist, he’ll do his damndest.
The Radical Republicans are spinning in their graves.
Piglet 09.13.05 at 1:27 pm
I would take anything in that NYRB article with a major grain of salt. Based on a quick read, it seems entirely designed to make Roberts look as bad as possible, and most likely omits any of the details that would paint Roberts as something other than a racist.
For instance, the question of to what extent Congress’s power to limit the jurisdiction of federal courts, see U.S. Const. Art. III sec. 2 cl. 2, is limited by the equal protection clause is a pretty tricky one that would require a lot of thinking through.
The key legal issue would most likely be precisely the one Roberts appears to be engaged with (based on the cursory description in the article). Would a limitation on federal court jurisdiction over school desegregation be treated as a “racial classfication”? If so, this would trigger strict scrutiny and the statute would likely be held invalid. If not, the statute would likely be valid. But what makes something a “racial” classification? Discriminatory impact? Discriminatory intent? In any case, one would have to look at the likely race of potential plaintiffs and defendants in assessing this issue, as I suspect Roberts rightly does.
Kind of rough to imply someone is a racist for addressing the actual legal question at issue, no? Had Robert’s “lifted directly” this statement from France, I’m sure it would have been quoted directly, not paraphrased. I imagine the NYRB article paraphrases a much longer, probably quite technical, discussion to make Roberts look bad. No way to know for sure without reading the original document in full though.
Steve 09.13.05 at 2:28 pm
Hmm. An oddly written paragraph. But I’m having trouble wrapping my head around one of the main sentences.
“Nowhere in any of the memos that have been made available did John Roberts acknowledge the effect of the many years of disenfranchisement on black citizens.”
what does lack of voting rights for blacks (which, incidently, ended over 40 years ago) have to do with the debate over federalism? Yes, yes, I know. The lack of voting rights for blacks in 1958 justifies the liberal view on every social issue. Acknowledge and stop thinking. Agree, or don’t get tenure.
Steve
Steve
Joshua W. Burton 09.13.05 at 2:30 pm
Off-topic, but my favorite riff on Anatole France has always been this passage, from a tall tale by (!) J. B. S. Haldane, the biologist.
“I am living as cheaply as I can, but my expenses are much increased by the law of the land. In England, anyone may sleep in the open, provided he has a shilling on his person to rebut the charge of being without visible means of support. But in France, to quote Anatole France from memory, ‘The law with majestic impartiality forbids the rich, no less than the poor, to sleep in ditches or under haystacks.’ That is the worst of equality.”
rilkefan 09.13.05 at 3:20 pm
I’m not a French or France expert, but I claim here that “majestic” is inaccurate – “the law, in its great concern for equality” or “anxious concern” look more accurate to me.
rd 09.13.05 at 3:21 pm
Good grief, what a cheap hatchet job. roberts at the time argued *against* the jurisdiction stripping bills as bad policy, but provided a legal argument for why they might be constitutional. While a jurisdiction stripping bill that contained no racial classification might be challenged constitutionally on a number of grounds, its potential racial *effects* is a pretty weak one. Again, whether something is good or bad policy, or even just or unjust, is *not* the same question as whether its constitutional or not. One can argue that a policy one opposes, even on grounds of grave injustice, is still within the power of Congress.
Brett Bellmore 09.13.05 at 4:28 pm
“Roberts was in favor of limiting the progress of African-Americans in participating in the political process”
It might be just a tad less argumentative to note that Roberts argued in favor of a policy which the author of the piece believes would limit the progress of African-Americans blah blah blah. I’ve never been terribly impressed with this particular rhetorical gambit, of assuming that one’s ideological opponents of course must agree that liberal (Or conservative, as the case may be) policy prescriptions will have the desired effects, and none other, and so oppose them because they oppose their aims.
Tracy W 09.13.05 at 6:37 pm
I’ve always puzzled over what Anatole France thought the law should be if he objected to the formulation he refers to.
“The law, in its majestic equality, permits the rich and the poor alike to sleep under bridges, beg in the streets, or steal bread” sounds equally sarcastic. The vast majority of the rich would not want to sleep under bridges or beg in the streets, the only reason the vast majority of the poor do is that they can’t afford anything better. And while the rich may wish to steal bread, one does not have to be a radical free-marketer to note that permitting the stealing of bread is rather harsh to the baker.
And other variations, like “The law, in its majestic inequality, forbids/permits the rich and permits/forbids the poor to sleep under bridges, beg in the streets or steal bread” also are ridiculous.
The only solution I can see to Anatole France’s problem is the introduction of a welfare state, trying to make the law itself unequal in that case at least doesn’t strike me as leading to any more sensible outcomes.
Ted 09.13.05 at 6:45 pm
I’m sure the 55 Republican Senators will all
be moved to vote against the Roberst nomination
becuase of an analyses in the NYRB. Right
after they finish their review of the latest
in ID Magazine :-}
I bet Hillary votes FOR Roberts. And she
even represents the state from which the NYRB
is published.
80+ for Roberts confirmation?
Chris W. 09.13.05 at 7:14 pm
He may well have been familiar with the quote, but why on earth would he be expected to subscribe to a quasi-communist socialist writer’s opinions?
I’d have thought he’d be very much opposed to the likes of Anatole France anyway.
(The French original: “La majestueuse égalité des lois interdit aux riches comme aux pauvres de coucher sous les ponts,”
So “majestueux” qualifies “égalité”. Unfortunately, “majestueux” is not precisely the same as “majestic”, nor is “égalité” exactly “equality”. My stab at a translation: “The law in its lofty concern for equality [maybe better: “in its noble even-handedness”] forbids rich and poor alike to sleep under bridges.”]
Chris W. 09.13.05 at 7:28 pm
@tracy (N°10): France’s concern in this particular case wasn’t with the existence of poverty per se, but with the fact that some laws — repressive laws — only apply to a particular, disadvantaged segment of the population: A law that forbids to sleep under bridges or steal bread will only be used to police the poor.
(Just like the myriad immigration laws and regulations will never get someone in trouble who holds the relevant citizenship.)
I don’t imagine many states have law that explicitly allow sleeping under bridges, even though it may be allowed by default if there’s no law about it.
Oh, and I cut off the end of the original cite: “… de mendier dans les rues et voler du pain.”
Tom T. 09.13.05 at 7:29 pm
Here is what looks to be the memorandum in question, with the cited passage found at pdf page 23, memo page 24 (page 5 is not reproduced here). The NYRB’s paraphrase seems accurate. I suppose one should also note a passage from the preface at p.2: “This memo is prepared from a standpoint of advocacy of congressional power over the Supreme Court’s appellate jurisdiction; it does not purport to be an objective review of the issue.”
ogged 09.14.05 at 12:13 am
Also in the preface: the memo was written at the behest of Ken Starr. Yeesh.
But, like Tom T. says, this was written as an exercise, marshalling arguments for just one side of a debate. To claim that it represents Roberts’ views is unfair. Also slightly unfair is the use of the phrase “unequal treatment” to describe what Roberts is writing about. “Treatment” isn’t wrong, but conjures something broader than the issues of standing and levels of scrutiny that the memo is considering.
(That said, given that employment in Reagan’s justice department wasn’t mandatory, arguments that Roberts was just doing his job as a lawyer only go so far in quelling doubts about his personal views.)
snuh 09.14.05 at 12:45 am
Good grief, what a cheap hatchet job. roberts at the time argued against the jurisdiction stripping bills as bad policy, but provided a legal argument for why they might be constitutional…Again, whether something is good or bad policy, or even just or unjust, is not the same question as whether its constitutional or not. One can argue that a policy one opposes, even on grounds of grave injustice, is still within the power of Congress.
this seems to me to get it exactly ass-backwards. roberts is being considered for chief justice of the supreme court. clearly, his opinion of whether the law is good or bad policy is, or should be, irrelevant. but the question of whether he thinks the said law is constitutional is highly relevant, in that this is the question roberts would have to decide if it came before the court.
rilkefan 09.14.05 at 1:42 am
chris w, I think you’ve got a back-formation, not an original quote. OTOH I’m relying on the top 20 google hits and not a library.
Michael Mouse 09.14.05 at 6:54 am
The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.
To be completely fair to the law here, it also forbids the poor from insider share dealing, manipulating the stock market, monopolies on certain trade items and owning too large a percentage of the national media.
[Stealing unattributed an excellent riposte.]
abb1 09.14.05 at 7:32 am
If only those who manipulate the stock market were pursued and punished as harsh as those who steal bread. That would be a different world.
Uncle Kvetch 09.14.05 at 8:15 am
You beat me to it, abb1.
Ralph Hitchens 09.14.05 at 9:32 am
Tom T. & ogged seem to have nailed this down. It’s ridiculous to read the memo and then conclude that Roberts is a racist. The Constitution says what it says, and we either have to amend it or live with it. As Roberts said in other memos around this time period, limiting jurisdiction is bad policy but the Government (Roberts’ client) certainly needed to be familiar with the constitutional arguments that would be put forward in defense of it.
Gareth 09.14.05 at 1:02 pm
If Roberts should not be confirmed because of this memo, no lawyer should be on the Supreme Court. Which would cause a bit of a problem.
The Democrats don’t have the presidency, and they don’t have a majority in the Senate. Bush appoints someone about whom the worst that can be said is that they worked for past Republican administrations. Who knows who he will appoint for the other vacancy? The Democrats need to keep their powder dry.
Grow up. Confirmation is going to be near unanimous.
Squander Two 09.15.05 at 9:13 am
> If only those who manipulate the stock market were pursued and punished as harsh as those who steal bread.
Right. So you going to cite some case references for this bizarre implication that (a) bread-thieves rarely get away with their crimes because the police put such mammoth efforts into catching them and (b) theft of bread is typically punished with a stiffer sentence that the various types of stock-market fraud?
Kieran,
Your parallel is all wrong. Rich people don’t need to steal bread, because they can afford to buy it. Rich people don’t need to sleep under bridges, because they have houses. White people don’t need to appeal court decisions about schools, because… er….
Bro. Bartleby 09.15.05 at 3:33 pm
Hmmm, did anyone hear listen to the hearings?
Tracy W 09.18.05 at 5:18 pm
Chris W – So he thought that the law should permit the poor to sleep under bridges and beg in the streets and steal bread? And it wouldn’t have seemed equally sarcastic to him?
Annoying guy, going off and dying before I was born so I can’t ask him.
Laws do tend to be more binding on those people who have reason to want to break them than those who don’t. And sometimes laws can be more binding on the poor than the rich. That doesn’t necessarily mean they’re wrong. For example, damage to your frontal lobes can both throw you into poverty (through inability to work) and make it vastly more difficult for you to avoid attacking someone. Laws banning assault bind much more on vulnerable people with dangerous head injuries than on the average person – does that mean they’re wrong?
In the cases Anatole cites, while I am rather inclined to believe that people should be allowed to sleep under bridges and so forth if they like (and it may be useful to any rich people who get caught out without shelter), allowing the free stealing of bread would result in there being no more bread to steal as the bakers, farmers, etc, decided to do something more rewarding with their time. Better the law be equal and the government give money to the poor to buy their own bread.
And in the case of immigration laws and regulations – surely the problem there comes from the inequality between those with citizenship and those without?
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