SCOTUS, ‘Color Blindness’ and the Invented Past

This morning I was reading this Slate article by Rick Hasen and Dahlia Lithwick on newly released papers which seem to show the late Chief Justice William Rehnquist held on to his segregationist views well into his time as chief justice. (For background, as a SCOTUS clerk in 1952, Rehnquist wrote a memo explicitly defending the constitutionality of Plessy v Ferguson and the segregationist system that was built up on it. He later played a key role in organized voter suppression efforts in Arizona in the 1960s.) Hasen and Lithwick tie Rehnquist to the current Court majority’s view that the 14th Amendment is essentially a warrant for color blindness in the law.

The 14th Amendment particularly has implications which were very much by design that go beyond the fate of post-war ex-slaves. It essentially creates a thing we now take for granted, the status of citizen of the United States. It also has implications beyond things the architects of the amendment could have conceived of. But there are certainly concrete things that are totally clear about it and the other Civil War amendments if you spend even some basic time understanding why they were created, what they mean and what they meant to accomplish. Reading Hasen’s and Lithwick’s piece was helpful, reminding me of this by showing the bust-up collision between the actual Civil War amendments and the theoretical latticework that gets promoted in Federalist Society world and in some ways (albeit often in a much more benign form) in law schools generally. In the latter case, there’s nothing wrong with theory. It has its place. It’s necessary if your aim is not simply historical understanding of the amendments but some level of application to present-day realities.

The Secret History of ‘Debt Ceiling,’ the Original Movie

As we analyze and try to make sense of how this debt ceiling drama has worked out, there’s one important difference with the original crisis 12 years ago to keep in mind. Back in 2011, President Obama was very much bought into the idea of deficit reduction and “the grand bargain.” Some of this of course is the distinct matter of inoculating against Republican fiscal politics — nods to fiscal probity, deficit reduction and so forth. To really understand politics it’s critical to distinguish between true agendas and reactive, positioning politics of that sort. But, to a degree, he was actually bought into it.

The Diehards Fold

Yesterday, Rep. Matt Gaetz (F-FL) said that a bright line Kevin McCarthy couldn’t go past without triggering a “motion to vacate” would be having a majority of the GOP caucus vote against his debt ceiling/budget deal with Joe Biden. This gives away the game. They might as well say that they’ll end McCarthy’s speakership the second he announces he’s identifying as non-binary. The couple dozen Freedom Caucus diehards are now setting the bar comically high because it’s suddenly clear the cudgel they’re allegedly holding over McCarthy has been vastly overstated.