Goodwin Liu Was Right About John Roberts

National Review blogger Ed Whelan, who has been leading the right wing attack effort against President Obama's 9th Circuit Court of Appeals nominee Goodwin Liu (my professor at Berkeley Law), doesn't like what Professor Liu had to say about then-nominee John Roberts.

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination. According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Whelan goes through and tries to mince Liu's words in an effort to try to undermine his nomination to the Court of Appeals. But where Whelan's post is wholly lacking is in the recognition that Liu was entirely correct in his estimation of the type of Chief Justice John Roberts would be.

Let's just look at the issue of Civil Rights, an area in which some of the most profound decisions of the Roberts era have occurred. In the case of greatest note, Parents Involved in Community Schools v. Seattle School District No. 1, the Supreme Court under Chief Justice Roberts in effect gutted the heart of the Brown v. Board of Education decision of a half-century earlier with a majority so razor-thin that it evaporated into a plurality in part (that is, only part of Chief Justice Roberts' opinion garnered majority support; the rest was joined only by three other Justices, with the remaining five unwilling to sign their names). Here's Jeffrey Toobin writing about the decision in The New Yorker:

In the most famous passage so far of his tenure as Chief Justice, Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Roberts's opinion drew an incredulous dissent from Stevens, who said that the Chief Justice's words reminded him of "Anatole France's observation" that the "majestic equality" of the law forbade "rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." For dozens of years, the Court had drawn a clear distinction between laws that kept black students out of white schools (which were forbidden) and laws that directed black and white students to study together (which were allowed); Roberts's decision sought to eliminate that distinction and, more generally, called into question whether any race-conscious actions by government were still constitutional. "It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today's decision," Stevens concluded.

What Roberts did here, as Justice John Paul Stevens suggests, was make new law in restricting the ability of the government to address Civil Rights in the class room, in doing so turning on its head the thrust of Brown.

To take a more recent example, the Roberts Court, by a similar 5 to 4 margin, fundamentally altered Civil Rights law in the area of employment in Ricci v. DeStefano, a case you may recall from the confirmation hearings of then-nominee Sonia Sotomayor. In that case, the Court made new law -- or as Chuck Todd put it, the majority "legislated from the bench" -- to hold it impermissible for the New Haven fire department to have altered its policy of promoting firefighters when faced with the potential of a successful suit alleging that the promotion policy, as applied, violated Title VII employment discrimination law.

I have not followed closely enough the Roberts' Court's decisions in the areas of the environment or abortion to speak to whether it has undertaken similar rightward shifts in the law (though I do know that the Supreme Court under Roberts overturned a seven year old precedent in the area of choice with its Gonzales v. Carhart decision). Nevertheless, at least in the area of Civil Rights law, it's hard for me to understand how one could argue that Liu was not prescient in his statement that Roberts was a "cause for concern."

[UPDATE by Jonathan]: It looks like Chief Justice Roberts has also not been a boon to the environment, either. Here are reports from The New York Times and The Daily Journal.

Death is an unavoidable eventuality. All we do throughout our life is write our obituary….think about it. This written remembrance is all we are after we’re dead.

It appears Supreme Court Judges Samuel Alito and John Roberts want to be remembered as the Judges who hate hard-working Americans and the U.S. Constitution so much that they gleefully destroyed our Founding Father’s vision of our great new nation when these Judges cast their votes removing the “cap” on corporate and union contributions to political candidates (which had been in place for 60 years). As written in the Constitution, “We the PEOPLE “elect our leaders, NOT U.S. CORPORATIONS elect our leaders!

Oh well, what can be expected when the worst President in the modern U.S. history chose this disgraceful pair. The misery of the George W. Bush Administration and the filthy President Dick Cheney CONTINUES to wreak havoc on our great nation even after their gone!

No more voting for me, it is now a waste of gas to drive to the polling stations. Mr. Alito and Mr. Roberts, I hope you both rot-in-hell for what you have done to my country.


Racial Segregation in U.S. Schools: Illinois Terminates Chicago's Desegregation Decree

All people should have the opportunity to succeed in life, regardless of their race. But a recent Illinois district court decision jeopardizes that possibility.

In U.S. v. Board of Educ. of City of Chicago, an Illinois district court ended a twenty-three year old consent decree, which was intended to ameliorate segregation in Chicago public schools. Viewing the Chicago public school system through the lens of the particular constitutional violations that had warranted the initiation of the decree in 1980, the court determined that the consent decree was no longer necessary, because those "vestiges of discrimination" identified in 1980 were "no longer."

With an eye towards racial progress and expanded opportunity in the United States, this narrow view of segregation in public schools is deeply problematic. Although we might hope that race does not matter, too often it does. Even though over fifty years have passed since Brown v. Board of Education, according to a 2005 report by the NAACP Legal Defense and Education Fund, almost 2.4 million students—including about one in six of both black and Latino students—attend schools in which the student population is 99-100% minority.  Nearly 40% of both black and Latino students attend schools in which the student population is 90-100% minority; conversely, only 1% of white students attend such schools. Additionally, 72% of black and 77% of Latino students attend schools in which minorities constitute a majority of the students.

There's more...

Washington: It's Crunch Time to Protect Domestic Partnerships!

(Also at Nevada Progressive)

Remember that other election happening next Tuesday? You know, the one in Washington? The one where domestic partnerships are up for a popular vote?

Yes, you heard me right. Domestic partnerships are now at risk in Washington. There's only one week left until Election Day, and the time is now to get working to protect Washington's LGBT families!

There's more...

Maine: No on 1 Taking Lead, But Opposition Is Getting Ruthless

(Also at Nevada Progressive)

Well, we have some good news and some bad news to report in Maine today. First, let's start off with some good news. Maine Public Broadcasting just got the hot new Pan-Atlantic poll numbers.

Pan Atlantic's Patrick Murphy says the survey of 400 likely voters found 53 percent opposing Question 1, which would repeal Maine's gay marriage law, while 42 percent favor the measure and six percent remain undecided. [Empahasis mine.] The poll has a margin of error of plus or minus 4.9 percent.

Murphy says Question 1 is getting a different reaction in Maine's two congressional districts, with voters in the 1st District favoring the measure by a 20 point spread, while voters in the 2nd District remain nearly equally divided. He says among the state's Catholic voters, the measure has a narrow margin of support, 49 to 46 percent.

There's more...


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