Justice Sonia Sotomayor on Colbert

 The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upone probable cause, supported by Oath or affirmation, and particular describing the place to be searched, and the persons or things to be seized.

--Fourth Amendment, United States Constitution

Justice Sonia Sotomayor appeared on Stephen Colbert, an event which Mad Dog could not miss.

What is a Supreme Court justice doing on a comedy show which has morphed into a platform for liberal resistance to MAGA world? 

Is she not supposed to be at least pretending to be impartial, unbiased and not political?

Justices are allowed to write and plug books, presumably claiming their first amendment rights to free speech, and so they do appear on the public airways and that is supposed to be okay; at least it's done. And Sotomayor, ostensibly, had a book to plug.

Colbert pursued her on two topics: the recent Shadow Docket case, Noem v Vasquez Perdomo in which the Court allowed ICE agents to stop and detain people simply because they 1/are speaking Spanish, 2/ look Latino or 3/are found to be hanging out at jobs which are low paying and known to be jobs frequently done by illegal immigrants. 

So that sort of profiling is just fine with the 6 member majority. 

Think about that: The Supreme Court has now said that police or ICE can throw you into a van because you have committed the crime of walking while Brown, of looking Hispanic. This is justified because we know that it is Hispanics who commit the crime of crossing into this country without permission, so it only makes sense to grab anyone who looks Hispanic and may be on or near a worksite or at a Taco Bell. 

The same sort of thing happens when a young Black male is walking down the street, thrown up against a wall by white police because it's an established fact that young Black males commit murder with handguns in the ghetto at higher rates than other groups, and being a member of a group, a class of citizen which has a high crime rate is now justification for the police to frisk and detain you. 

This means that to the White policeman you have only one meaningful characteristic: You are Black. Or you are Brown. And the Court agrees with that.

If the police had grabbed you because you had another characteristic, say being over six feet tall, or having a Mohican haircut, or a nose piercing or wearing dreadlocks or a bandana, or because you did not bow in the direction of the policeman, what would the Court have said about that justification of "probable cause" ?  

When the police detain you, for being Black, must they read you your Miranda rights?

The whole idea of restraining police behavior is meant to protect citizens against police who have guns and back up from simply acting as the playground bully.

The plain fact is law and order are only a virtue if there is order in the execution of the law--it does not work if the government imposes order by the unrestrained actions of agents of the government who are simply sadists, racists or thugs. Then you have oppression, not law and order.

And Justice Sotomayor knows this; apparently Alito, Thomas, Gorsuch, Kavanaugh, Roberts and Coney-Barret do not. None of these guys have ever been strip searched, thrown into a van, held in jail without due process or, for that matter, ridden in a boat which was bombed without being searched, because it looked suspicious in the eyes of the White guys in the airplane.

Sotomayor disagreed with this violation of restraint imposed by the Fourth Amendment, and, in her dissent, she said, at the conclusion of her 30 page dissent:

"The Fourth Amendment protects every individual's constitutional right to be 'free from arbitrary interference by law officers'...After today, that may no longer be true for those who happen to look a certain way, speak a certain way and to work a certain type of legitimate job that pays very little. Because this is unconscionably irreconcilable with our Nation's constitutional guarantees, I dissent."

Mad Dog has read the rest of the 30 pages, and Justice Sotomayor addresses the arguments of her colleagues in the 6 person majority patiently, but, in the end, she finds what they did, the opinion they expressed to be unconscionable. Now, during her responses to Colbert's gentle probing, she maintained that people can hold objectionable and even obnoxious opinions but these same people have some good in them. 

Nevertheless, she has said her six colleagues are unconscionable. 

As Robert Kennedy, Jr. would say, "The two things are both true at the same time."

Mad Dog, for one, cannot see that these two things can be true at the same time. Sometimes the evil that people do is so toxic it poisons and contaminates any clean, good things about them.

https://www.supremecourt.gov/opinions/24pdf/25a169_5h25.pdf

Oh, you can quibble and say, well she did not call them unconscionable; she simply said their opinion in this case was unconscionable, but that is a distinction without a difference--it is like saying that concentration camp guard acted in an unconscionable way by leading those people into a gas chamber, but apart from that unconscionable practice, he has a lot of good in him, and he has his own crosses to bear with a mother and wife and children and dog who depend upon him and to whom he shows nothing but love and for whom he sacrifices.

Justice Sotomayor is in a tough spot. She does not want the public to lose all faith in the Supreme Court of the United States, to which she has dedicated a good chunk of her life, in which she places great value, or once placed great value. 

But she allows that the Court can only rule by persuasion--it has no army and it has no power to tax or raise or withhold funds. She implores the public to read the individual opinions of the various justices, which she says often provide arguments you may not have thought of, if you take time to "aude alteram partem," i.e. hear the other side.

And Mad Dog has done just this. It is true that even in decisions which sound patently absurd, when you hear the details of a particular case, and when you slog through the thinking of a particular justice, you can see he is trying to persuade. For Mad Dog, one instructive exercise was reading Antonin Scalia's opinion in DC v Heller, a case disallowing the statute of the District of Columbia which bans private citizens from keeping guns in their homes or walking about with guns without license from the chief of police.

Scalia tried to undo generations of legal opinion which said that the second amendment guaranteed the right of the people to keep and bear arms only if they were members of a militia, i.e. part of a military group authorized to keep and bear arms for the purpose of keeping a free society free.  Scalia did mental back flips, teasing out the meaning of the word "people" as a "term of art" and he did the same for "militia," all in a lame effort to explain the unique exception of the Second Amendment being the only place in the Constitution where the reason a right is granted is explained, i.e. to keep  society free by citizens who are part of a government sanctioned military.

His machinations are, in the end, pitiful and one can only feel sorry for him. He loved his guns, and in fact he died at a gun shooting retreat, and he was determined to make the country safe for gun owners and gun enthusiasts and he was determined to work his way back to the ruling that guns are just dandy and government should keep it's government hands of his guns and the guns of gun lovers.

Famously, he also loved opera and attended the Washington opera with Justice Ginsberg, and they both fostered that idea that the members of the court should fight like cats in chambers, but all without personal animus. Even though a decision might allow government agents license to bludgeon, imprison and abuse disadvantaged citizens, may make some citizens' lives a living hell, the justices can go out to dinner and eat well, then attend the opera, while the ghetto seethes.

The fact is, neither Justice Ginsberg or Justice Sotomayor can convince anyone that insisting on seeing the good heart in the justices who embrace practices which are the essence of racism, not color blindness but color driven, is a good thing. The only justification you need to manhandle, handcuff and VAN-dalize a Hispanic man is he looked suspicious to you, being Brown and being a roofer.

Once Hitler was named Chancellor and his henchmen, Goering and Hess were in place, there was a collapse of civility in the Reichstag chambers--Nazi members beat up opposing parliament members in the chambers and shouted "Pigs!" and "Jews!" and made any sort of actual debate impossible. 

Sotomayor, in her insistence that we hear the other side and see the good in the hearts of the MAGA mob is blind to the truth about the opposition, which is no longer a loyal opposition. She insists on treating the MAGA mob as a loyal opposition, when they are not loyal, only an opposition, and in fact, members of an insurrection.

She did mention she was a prosecutor and saw in her work people who were irredeemable and simply bad. So she knows there are people in the world who are evil.

But she has not yet, apparently, realized she is facing in Trump, RFKJR, Stephen Miller, Noem, the whole MAGA mob a different set of human beings.

And even Goering always tried to justify his own violence by claiming it was the other side which started the violence. Goons often claim they were the victims and their own violence was justified by the guy they violated. Goons deny throwing the first punch as a matter of tactic.

Trump, standing at the podium of a rally in Alabama in 2015, watching a crowd beating a heckler said, "Maybe he should have been roughed up, because it was absolutely disgusting what he was [saying]."

So there it is: the SA street thugs at the Trump rally beat a man for exercising his right to free speech and Trump endorses the violence, but he, and all of MAGA world are the victims.

A MAGAhead drives his car into a group of protesters at Charlottesville, killing one, after a torch light parade the night before. Now, remember, torch light parades were the hallmark of the Nazis, after which street beatings of opponents always followed. The Charlottesville Unite the Right mob did not have to wear swastikas to be understood as Nazis. And yet, Mr. Trump said there were very fine people on both sides of that event, as if there is such a thing as a very fine Nazi.  In his famous opinion in which he said "Freedom of speech does not mean you can falsely shout 'Fire' in a crowded theater," Oliver Wendel Holmes noted that speech has to be always judged "in the context" of when it is said. That's where "incitement to riot" comes from.

So Trump and his MAGA mob have been using the language of violence since his first run for Presidency, but they always deny they are the violent ones--it's only their adversaries who are violent. It's always the fault of Biden and Obama and Hillary.

And Justices Thomas, Alito and Gorsuch belong in that MAGA mob rogues' gallery.

We are past the point where listening to the other side is a viable practice. The other side is not listening to us.

Arguing From A Class

 

Whenever Mad Dog hears an advocate of ICE round ups holding forth on the grave threat illegal immigrants pose to American society, there is almost always the same progression of establishing the case: 1/ First, the most horrible example of a Nicaraguan tattooed gang member having raped and dismembered a White woman 2/ Then, there is the statement that this is what Brown skinned illegal immigrants from South of the Border are and do, 3/ Therefore we have to get rid of the whole lot of them.

So, you start with the one indisputably bad guy, move to this guy as a representative of the essential nature of all members of his class, e.g., Nicaraguan men who have sneaked into the country all share these characteristics: prone to rape, murder and dismemberment. Never mind if this guy is a hard working tree pruner: He's from South of the Border, ergo he's a potential rapist wannabe.

Same thing was true for centuries in the South: A Negro male rapes a white woman: Well, that's what they do.

The same has been applied to Southerners, for that matter. Ku Klux Klan members are white males, therefore all Southern white males are Ku Klux Klan.

Ku Klux Klan members were Christian. Does that mean all Christians are Ku Klux Klan members?

General Ulysses S. Grant was the general Abraham Lincoln had long sought. After a succession of cautious, passive generals, he finally found an aggressive, decisive general with a sense of grand strategy.  

But then, one day, General Grant was told that Jewish merchants had been engaging in a black market for captured Southern cotton, and Grant issued General Order # 11, expelling all Jews from his military district of Tennessee, Kentucky and Mississippi. 

So here we have the progression. These black marketeers have engaged in bad behavior. At least some of these black marketeers are Jewish, therefore all Jews are black marketeers and have to be expelled, at least from this district.

The Union Army did not have ICE agents, but it did have soldiers in uniform and none of them wore masks to expel the Jewish merchants.

Much as Lincoln loved Grant, Lincoln immediately quashed that order, telling Grant, "You cannot apply such punishment to a class of people." Each individual has to be investigated and prosecuted for what he individually has done, not for the crimes of his group.

That, of course, is the essence of "due process."

In fact, seeing "the Jews" as a group was an obvious construct.  Are you talking about only male Jews? Are you talking about Jews from Spain or from Germany?  Are you talking about male Jews only, or also females and children? Are you talking about Jews born in the USA or Jews who have recently immigrated? Are you talking about citizen Jews or non citizen Jews? Are you talking about blue eyed/blond Jews or swarthy Jews?

One can only imagine Lincoln, the lawyer, talking to Grant about this later. "You're a great general. You're not a great lawyer. And you are certainly no Constitutional scholar."

Lincoln applied the same principle of individual responsibility as opposed to  group guilt when it came to the infamous Indian hangings in Minnesota. After a bloody rampage by Dakota Indians, nearly 400 captured Indians were scheduled to be hanged, and the governor of Minnesota wanted Lincoln to sign off on this. 

Lincoln insisted on a form of due process. He insisted the files on every accused Indian be sent to the White House. The governor assured Lincoln if he did not act then the governor would hang all 380 Indians. 

Lincoln selected out 38 Indians from the files which he thought provided enough evidence of guilt, and the rest were spared. It was the largest mass execution in American history.

This episode is often used by revisionist historians and Lost Cause advocates to suggest Lincoln was a racist, not the great Emancipator, but a typical White politician. But, of course, what it really was was Lincoln, the lawyer, insisting on individual trials for individual crimes. 

(Of course, on a personal level, Lincoln hated the idea of executions, whether for deserters or insurrectionist traitors. That underlying personality trait is often important in what moves a President to action. He had no need to demonstrate his capacity to dominate, never cried out, "It is not US who should be afraid; it is THEM who should be afraid." Lincoln was confident in his own courage and power--he felt no need for gorilla chest thumping.)

The impulse to indict a person because he is a member of a group you do not like, is, of course, at the heart of racism.

Seeing a Black person as a Black, rather than as an individual is fundamental to this world view.

Seeing Brown skinned immigrants, whether they are poor people from El Salvador, or blue collar workers from Mexico, or nuns from Honduras, is another feature of deep seated racial hatred.  When people begin to look not like individuals, but as simply a member of a vilified group, that is an America none of us should want to go back to.

 We had enough of that the first 300 years.