Posts Tagged ‘racial discrimination’

Oh, Scalia

Tuesday, January 4th, 2011

 

If you’ve been reading this blog for any length of time, you’ll know that we really like Scalia.  We really do.  We like the way he thinks, we like the way he writes, and we like that he’s not a phony.  His law clerks may moan and groan that he’s hard on them, but they’ve actually got it pretty easy, because he knows what he thinks and (more importantly) he knows why he thinks it.  He doesn’t need them to do the heavy lifting for him.

At the same time, we’ve had to take issue with some pretty boneheaded things he’s written or said.  In his attempts to discern what the authors of a given law were talking about, he often misses the underlying policy.  The job of a top jurist or legal scholar is to figure out what the underlying principle is that explains, not only the law as written, but also the jurisprudence and related laws that have flowed from it.  Do the deep thinking to figure out what value our society happens to have, which the authors of the laws and court opinions may not have had the insight to notice themselves, but which nevertheless explains why this particular area of law is the way it is.  Once that root principle is known, it is easy not only to understand what the framers were saying, but also what has been said since, and even predict what is going to be said next.

Take, for example, his interview just published in this month’s California Lawyer.  Near the beginning of the interview, he had the following exchange:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?


Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

He’s right about what a Constitution is for.  The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government.  (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes.  There really is a difference.)

And he’s even right about the role of the courts in deciding things that are properly left to legislatures.  He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on.  Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on.  Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years.  The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result.

But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex.  It does.  It really does.

Nobody thought that’s what the Fourteenth Amendment meant when it was passed.  Granted.  But that only means they didn’t have the insight to recognize the very principle they were upholding.

The relevant portion of (more…)

“Not With Me, They Don’t” – Race Not a Factor in Sentence, Says Judge

Thursday, January 22nd, 2009

 

District Court Judge Percy Anderson sentenced Jeanetta Standefor to more than 12 years in prison on Tuesday, for running an $18 million Ponzi scheme that preyed on middle-class black investors.

Standefor, who is also black, solicited investments from 650 people around Pasadena who thought the money would go to buying properties about to go into foreclosure. To maintain the illusion of profits, Standefor transferred $14 million of the invested money to early investors. She also spent about a million per year on herself, according to AUSA Stephanie Yonekura-McCaffery. The operation was run through her company Accelerated Funding Group — a name that is practically probable cause in itself.

At the sentencing hearing in the Central District of California, victims told Judge Anderson how they had trusted Standefor with their savings, often their life savings, after she first befriended them. Investors were told that they could make 50% profits in the first month.

Standefor’s attorney, federal defender Charles Brown, argued for leniency. “She is not a serial killer,” he said. “She is not a drug dealer. This is not a person who needs to be thrown in jail and locked up to learn her lesson.” He added that she was a foster child “who worked her entire life to prove her worth. . . [but] she took shortcuts, and started taking from Peter to pay Paul, and that’s how we got here.”

Judge Anderson disagreed with the defense attorney’s characterization, telling Standefor that even if this was just a white-collar crime, she was just as guilty “as if you’d taken a gun out and held it to the victims’ heads.”

Judge Anderson then ruled on sentence. Shortly before he imposed the sentence, however, Brown made one last attempt for leniency. Urging the judge to reconsider, Brown pointed out that the sentence was not consistent with those for similar cases around the country. Brown argued that it seemed to him that blacks get harsher sentences, even when they are convicted of white-collar crimes.

“Not with me, they don’t,” interrupted the judge, who is also black. “This isn’t about being black.”

Standefor was then sentenced to 151 months in prison and almost $9 million in restitution.