How Thurgood Marshall Beat David Allan Coe

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Tod Kelly
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    says:

    I loved everything about this post, Mark. Really wonderfully written.Report

  2. Avatar Shelley
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    says:

    “Unlikely ever to be undone”: powerful language.

    Makes Justice Thomas look so small.Report

  3. Avatar Jaybird
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    says:

    I loved this entire essay but went I came across this sentence, I knitted my brow. Something didn’t sit right.

    Nowhere in Brown does the Court disown or even really address one of Plessy’s core and- to the modern eye- most appalling claims: that legal distinctions between the races are entirely rational, and just an acknowledgement of social realities.

    Of course, I started thinking about all kinds of weird things like AA, sub-sections of the census, so on and so forth and then the question of laws that fail to acknowledge social realities bubbled up and I really started knitting…

    While it certainly seems that the legal distinctions being made are being made “for good” (unlike, of course, in the past), that makes the legal distinctions that *WE* are making the good kind… but there seems to be a part of me that is very much torn between the importance of acknowledging social realities and the importance of creating new social realities… and the impossibility (? Maybe it’s just difficulty) of doing that without some legal distinctions being made that seriously take social realities into account.Report

    • Avatar Kimmi in reply to Jaybird
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      says:

      Figure you could do a damn decent job of getting AA, if you just worked by wealth and not race. After all, that correlates so strongly with the types of discrimination blacks/hispanics have experienced…Report

    • Avatar Mark Thompson in reply to Jaybird
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      says:

      In retrospect, that is a line that could have been much better phrased. It is also the part of the post I most struggled to write. Does your eyebrow become a little less furrowed if I change “entirely” to “inherently”? I’m still not certain doing so gets my point across, but maybe it does a better job.Report

      • Avatar Jaybird in reply to Mark Thompson
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        says:

        Yeah, that softens the sentence considerably.

        I think I’m cool with that.Report

          • Avatar John Howard Griffin in reply to Mark Thompson
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            says:

            I would have suggested changing it to:

            that some people (a majority?) believe and argue that legal distinctions between the races are entirely rational, and just an acknowledgement of social realities.Report

            • Hrm….I’m not sure I follow.Report

              • Avatar John Howard Griffin in reply to Mark Thompson
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                says:

                Well, let’s throw out one word:

                Nowhere in Brown does the Court disown or even really address one of Plessy’s core and- to the modern eye- most appalling claims: that legal distinctions between the races are rational, and just an acknowledgement of social realities.

                Are legal distinctions between the races rational or not? Are legal distinctions between the races just an acknowledgment of social realities or not? If they are not, does everyone believe and argue that they are, or does only a subset of the population do so?

                “Rational” in the first instance, and “just” in the second instance are doing some heavy lifting in trying to tie these statements to the entirety of the human race.Report

              • Avatar Mark Thompson in reply to John Howard Griffin
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                says:

                I see what you’re getting at. The trouble is that Plessy< \I> made the far broader claim, including itself amongst those claiming such distinctions as inherently rational and reasonable.

                That said, maybe it’d have been better to say ” -and to some(most?) modern eyes-“Report

              • Avatar John Howard Griffin in reply to Mark Thompson
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                says:

                Yes, this is what I was getting at. I was also trying to point out that Plessy was less in line with an equal society.

                Additionally, I was trying to make the point that the view of “inherently rational and reasonable” and “acknowledging social realities” was different when Plessy was written compared to today, yet the view from today certainly follows more closely with “All Men Are Created Equal” (rebutting Jaybird’s uncertainty of “for good”).Report

              • Avatar John Howard Griffin in reply to Mark Thompson
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                says:

                To clarify: My overall point is that Plessy was social injustice written into law and Brown didn’t go far enough to undo Plessy. These are points you made several times in your post. I was just trying to refine the mentioned section towards these points.Report

  4. Avatar Burt Likko
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    says:

    A swimmingly good post. Particularly challenging is the notion that a retreat into formalism is the preferred maneuver of a decision maker who finds grappling with the merits of a dispute uncomfortable.

    I think a lot more of us are guilty of that, a lot more often than we would prefer to believe.Report

    • Avatar Mark Thompson in reply to Burt Likko
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      says:

      Thanks, Burt. I think what makes that aspect even more challenging is that there are indubitably times when a resort to formalism really is appropriate or necessary, and we’re not very good at telling the difference.Report

      • Avatar Stillwater in reply to Mark Thompson
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        says:

        Could you give some examples of what you’re thinking here?Report

        • Avatar Mark Thompson in reply to Stillwater
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          says:

          as I said, we’re not good at telling the difference. But an example of where I think formalism is just about always necessary is when it comes to application of the exclusionary rule of evidence. i view it as essential that this rule be applied rigidly even if it means the guilty “get off on a technicality.”Report

          • Avatar Plinko in reply to Mark Thompson
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            says:

            I ain’t saying that you should write that post right now or anything, but that sounds like a darn good’n.Report

          • Avatar Stillwater in reply to Mark Thompson
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            says:

            If the resort to formalism wrt the exclusionary rule is necessary, then how would the limits of the exclusionary rule ever be revised? That is, how could a dispute over those limits ever be resolved?

            Of course, you might have the principle itself in mind (and not what the specific exclusions that fall under it), but the rule itself could never be disputed or revised, right? It’s a necessary condition for a system of law.Report

            • Avatar Mark Thompson in reply to Stillwater
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              says:

              It would be my position that the rule should not have any limits. In my view, once there’s been a 4th Amendment violation found, even if it is a mere “technical” violation, any evidence even remotely attributable to that violation should be automatically excluded, no matter how guilty the accused or serious the crime.

              Thought I’m not sure if that gets at your point.Report

              • Avatar Stillwater in reply to Mark Thompson
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                says:

                But what would resolve a dispute about a fourth amendment violation? Retreat to the exclusionary rule? Doesn’t that beg the question regarding the limits of the fourth amendment of the fourth amendment in some sense?

                I don’t want to push too hard on this issue because you’re probably right (you know more about this stuff than I do :). But it seems to me that retreat to the exclusionary rule doesn’t resolve a dispute about the limits, or scope, of fourth amendment protections. Think of it this way: a term has a meaning as well as a set of things that fall under it. I’m wondering how a dispute about the types of activities that fall under the exclusionary rule can be resolved by retreat to the (definition of the) exclusionary rule.Report

              • Avatar Mark Thompson in reply to Stillwater
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                says:

                I don’t know how possible it is to take a broad yet formalistic view of whether a Fourth Amendment violation has occurred in the first place. I’m more assuming for my purposes here that a violation has been indisputably shown, but that it’s a fairly technical violation (eg, there is some sort of defect in the warrant’s language). To me, that procedural flaw should always prevent moving forward on the merits. Though this might not be quite what Burt had in mind when he referred to formalism.

                Then again, it’s more or less in line with how Justice Scalia seems to define formalism. Since Scalia is about as high profile an advocate of formalism as you can find, it’s probably a useful definition:http://en.wikipedia.org/wiki/Legal_formalismReport

              • Avatar Stillwater in reply to Mark Thompson
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                says:

                I was thinking of formalism as having a wider meaning than perhaps Burt intended, but I don’t think a narrower reading would make sense of what I’m arguing here. No, it don’t think that can be done, since I’m confused.

                Your claim, and Burt’s down below, is that there are instances where a retreat to the formal is not only justified, but necessary. Taking your initial example, the claim is that if a violation of a fourth amendment protection has been shown to have occurred, retreating to the exclusionary rule to resolve the dispute (which isn’t about the scope of fourth amendment protections!) is appropriate. My argument was that there is a case where retreat to the exclusionary rule is question begging, for example, if the dispute is over the limits or scope of fourth amendment protections. But that’s a different dispute than you’re talking about, and would require (or not) a different type of retreat.Report

        • Avatar Burt Likko in reply to Stillwater
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          says:

          Perhaps another example would be the Confrontation Clause. Maybe the Fifth and Sixth Amendments in their guarantee of jury trials. Or the mechanics of a bill passing out of Congress or the limits of the Supreme Court’s original jurisdiction.Report

  5. Avatar John Howard Griffin
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    says:

    the problem is that it willfully and blindly chose to ignore that the very laws it refused to overturn were an attempt to make the social inferiority of blacks permanent, an attempt to prevent the type of social change necessary for blacks to achieve social equality.*

    This, and your footnote, are very precise and correct, I think.Report

  6. Avatar Jason Kuznicki
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    says:

    Very, very good stuff.

    If I may add just a little bit: One of the reasons we had to go through the national shame of Plessy was the failure of the Supreme Court to do its job the first time around, in the immediate aftermath of the Civil War. Much more than the Equal Protection Clause, the Privileges or Immunities Clause was the line in of the Fourteenth Amendment that was intended to prevent discrimination in public life and the emergence of a second-class citizenship for the former slaves and their descendants.

    The Supreme Court shirked its responsibilities on that one starting with the Slaughterhouse Cases in 1873. Although the facts of that (combined) case didn’t have anything to do with race, the Court knew very well that ruling the other way would mean that future race-based claims under P&I would be even stronger in their justifications than just some stupid city meatpacking monopoly thing. So they decided in a way that left P&I more or less a dead letter. And we had to wait decades for a court bold enough both to go after segregation in a practical way and to craft a legal justification for doing it under Equal Protection, which historically wasn’t quite intended to work this way.Report

  7. Avatar Rufus F.
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    says:

    Social change leads to political change far more readily than political change leads to social change. Social change comes from making sure others care just a little bit more about how things affect you, and then making sure others know when and how things affect you. It comes from participating as fully in society as possible, not by trying to create separate societies of those who are and are not approved.

    This strikes me as three extremely meaningful sentences.Report

    • Avatar Stillwater in reply to Rufus F.
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      says:

      I thought so as well. Like, the best part of the essay. But they strike me as closely aligned with a liberal view, so I didn’t want to make a big deal out them by writing something like you wrote. I wonder: how would a conservative respond to these sentences?Report

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