Asa Kowals-Rose | Blog for RFILP

I’m hard at work writing and preparing for my presentation. Sleep is for the weak!

These chapters discussed Supreme Court activity from the early nineties through the time the book was written. During this period the Court issued decisions on cases involving prayer in school, sodomy laws, wartime habeas corpus rights, and affirmative action. This period also saw the Court vote to halt the recount in Florida after the 2000 election, thereby putting George W. Bush in the White House.

One interesting issue discussed in these chapters was Scalia’s claim that the Supreme Court had behaved inappropriately in striking down Colorado’s Amendment 2 in the Romer decision. Scalia accused the Court of participating in a “culture war,” rather than simply interpreting the Constitution; he seemed to imply that judicial activism surrounding cultural issues was more improper than judicial activism surrounding plainly political ones. This claim raised two questions in my mind. First, is there any real distinction between cultural and political issues when legislation, like Colorado’s Amendment 2, is passed in response to changing cultural trends? Second, is it actually possible for any Supreme Court decision to abstain from “culture war” when the Court itself is a product of the cultural status quo? I’m curious to see what the class has to say about these questions.

I’ve been reading about the history of Maori political representation in New Zealand. Since the implementation of the Maori Representation Act of 1867, there have been four special Maori seats in the New Zealand Parliament. Each of the seats represents a geographically distinct district; these districts are superimposed over regular parliamentary districts, and citizens of Maori descent can register to vote for either their Maori district or their regular one. Although this system guarantees some indigenous representation in parliament, most believe that it presents an extremely flawed approach to ensuring indigenous self-determination. Indeed, the seats were created to give only token representation to the Maori; the number of seats is fixed at four out of a total of ninety-nine, even though Maori comprise nearly fifteen percent of New Zealand’s population. Many believe that a separate Maori parliament should be created to better account for social and cultural structures that are ignored by the general parliament. This is only a brief discussion of the issue; there will be a much more in-depth explanation included in my paper, which I’ll begin writing in the next few days.

These chapters discussed the Supreme Court’s shift to the right in the post-Warren era. Irons points out that this shift wasn’t immediate; it took nearly twenty years after Earl Warren’s retirement for a conservative majority to solidify under William Rehnquist, a Nixon appointee who Ronald Reagan raised to the position of Chief Justice. During the interim, Warren Burger served as Chief Justice. Despite his conservative views, Burger’s tenure is probably most famous for the 1973 Roe v. Wade decision, generally regarded as a landmark liberal victory. The Burger Court also dealt with several First Amendment and civil rights cases.

One issue I found interesting about this section is the question of the extent to which the Court should reflect the political views of the presidents who appoint its justices. Many argue that the Court should strive to be entirely apolitical, but given the relative impossibility of this, shouldn’t the ability to appoint likeminded justices be considered one of the spoils of electoral victory rather than an abuse of power?

These chapters reflected on the rest of the book, piecing together each detrimental Supreme Court decision to establish a comprehensive narrative of the Court’s role in oppressing American Indians. Echo-Hawk uses this saga to argue that the genocides perpetrated in the Americas were legal under international law in the early colonial period, and remained legal in the United States thanks to legislative and judicial agendas that either implemented genocidal policies or condoned genocidal acts. Echo-Hawk suggests eight measures that would help rectify this history, and cleanse the legal system of racist, colonial attitudes toward American Indians.

This book left me questioning the merits of the American judicial system. As Echo-Hawk demonstrates over hundreds of pages, judges cannot be counted on to rise above the prevailing racist and colonial ideologies embraced by a large segment of American society; as a result, their decisions almost inevitably reflect prejudice, rather than a faithful and impartial interpretation of law. My question is this: can there ever be a legal system that truly protects the rights of racial and ethnic minorities, and does not succumb to the prejudices of the society it serves?

I’ve been combing through Ali Abunimah’s book, The Battle for Justice in Palestine, which compares the state of Israel to the United States in terms of their treatment of indigenous peoples. Just as the United States government disregarded tribal territorial integrity, the Israeli government continues to seize land in the West Bank, displacing Palestinians. What makes this situation unique is that, whereas disease decimated American Indian populations, the population of Palestinians displaced by Israeli settlers has been maintained, and millions of them live as refugees in Lebanon and Jordan. This makes the Israeli-Palestinian conflict different than other modern settler-indigenous conflicts; If Palestinians were given voting rights in Israel, they might be able to rely on popular representation to improve their situation, rather than being forced to resort to a byzantine justice system.

These chapters detailed the history of the Supreme Court from the late 1930s through the 1960s. This era saw the Court deal with several First Amendment cases, as well as important civil rights cases, most notably Brown v. Board of Education. One topic that I found especially interesting was the supposed politicization of the Court with regard to the Brown decision. I agree with the point Irons makes on page 396, where he writes, “The Court has always been a political body. Its historic opinions—in Marbury, in Dred Scott, in Lochner, in West Coast Hotel, in Brown—have all been legislative decisions; they ‘made’ new law to replace old laws.” The contention that certain government institutions are too “political” always seems to be made for political reasons, rather than a genuine concern for the integrity of the institution. It’s important to recognize that the Supreme Court can never be apolitical. Even the strictest adherence to the Constitution is not a rejection of politics, but rather a preference for the political leanings of the founders.

Nitpicking time: From whose ass did Irons pull his World War II death count? On page 363 he writes, “Around the world, some twenty million people—including six million Jews in Europe—perished in the global battle between the Allies and the Axis.” While an exact count is impossible to ascertain, twenty million is an outrageous understatement by any standard. According the National WWII Museum, the war had a global death toll of approximately sixty million, three-quarters of which were civilians. Irons’ number would perhaps be a plausible description of combat deaths, but his explicit mention of Holocaust victims makes it clear that he means to include civilians as well. When non-combatants are included, more than twenty million died in the Soviet Union alone. I cannot fathom how such an egregious factual error would be published in a BuzzFeed article, let alone a history book. I expect this kind of lowballing from contestants on The Price is Right, not Harvard-educated legal scholars.

Irons also glosses over an incredibly significant event in American presidential history. On page 364, he writes that Henry A. Wallace was removed from the Democratic ticket because he “had become a political liability for Roosevelt.” This oversimplifies one of the most outrageous episodes of partisan skullduggery in American history. Henry Wallace was not a political liability in the sense that he was unpopular among the Democratic base or the American public, but rather that he was considered too progressive by a number of Democratic Party elites. This pro-business cabal settled on Harry Truman as an alternate pick for Vice President, fearing that a Wallace Presidency following Roosevelt’s death would be inhospitable to their interests. Going into the 1944 Democratic National Convention, Wallace was favored to stay on the ticket, but the party bosses backing Truman delayed the nomination for Vice President, and used the delay to sway delegates in the latter’s favor. Had this conspiracy not taken place, Wallace would have succeeded Roosevelt in 1945. One can assume that the incredibly significant decisions made under the Truman administration, like the decision to use nuclear weapons against Japan, would have been handled differently by Wallace. It’s also likely that his appointments to the Supreme Court would have been at least somewhat more impactful than Truman’s “Four Horsemen of Mediocrity.”

The New York Times has a really interesting chart showing the ideological evolution of different Supreme Court justices over the past seventy years. I call this sort of stuff “information porn.”

On another note, it’s too bad we don’t have class tomorrow. This week’s Irons section had some really juicy misinformation, and I wish I could grouse about it to the class in person. Oh well. Anyone who’s interested can read my post on the matter.

In my research, I’ve been reading about the 1840 Treaty of Waitangi. This agreement between William Hobson, the first Governor of New Zealand and numerous Maori chiefs established British sovereignty over the islands. This treaty was different than most of the ones negotiated in the United States and Canada around the same time. Whereas American Indian treaties intended to strip tribes of land, the Treaty of Waitangi ostensibly protected Maori sovereignty, including control of tribal land. This, unsurprisingly, was frequently ignored by the government of New Zealand, but it nonetheless made indigenous-settler relations on the islands different from those in other British settler states.

The New York Times is reporting that Justice Antonin Scalia has died. While I’m sure most of us have political disagreements with the late Justice, we should treat that fascist fuck’s memory with respect, as befits a deceased Supreme Court Justice. Rest in peace Pumpkin Hitler.