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Amor Mundi: Justice Thomas’ Racial Fatalism

Justice Thomas' Racial Fatalism

The Supreme Court this week ruled that two gerrymandered districts in North Carolina were unconstitutional because they were impermissibly drawn on racial grounds to dilute the vote of black Americans. The swing vote in the 5-3 majority decision was Justice Clarence Thomas. For Scott Lemieux, Thomas’ vote is consistent with an idiosyncratic jurisprudence that may over time prove enormously influential. Lemieux sees Thomas’ idiosyncrasy most in evidence on his unique approach to legal questions where the issue is race.

“Thomas’s approach is particularly visible in cases involving race. Typical Republican nominees like Chief Justice John Roberts and Antonin Scalia combine a belief in formal colorblindness with the view that racism is no longer a major problem in American society. This willful optimism reached the point of self-parody with Roberts’s 2013 opinion gutting a section of the Voting Rights Act that required states with a history of discrimination to get approval from federal authorities for any changes to election law. Roberts held that because the Voting Rights Act had been so effective in addressing race discrimination in voting, Congress no longer had the power to enact its most important enforcement mechanism.

Thomas also generally believes in formal colorblindness, but for very different reasons rooted in (sometimes explicit) black nationalism. Thomas believes that the state should be race-neutral not because he has any illusions that racism has ended in the United States, but because he believes that color-blindness is the best that African-Americans can reasonably expect from the state.

Thomas’s fatalism can be seen even in opinions where he ends up in the same position as his conservative colleagues. His 2003 dissent from the Court’s opinion upholding the University of Michigan Law School’s affirmative action program is a powerful argument even if, like me, you ultimately disagree with the bottom line. Beginning by quoting Frederick Douglass, he makes a subtle, complex argument with pointed discussions about the fallacious assumptions that predominantly black institutions must be inferior; the dubious necessity of the state maintaining an elite law school; the disgrace of legacy admissions preferences; and the false “merit” reflected by standardized tests. Even if one ultimately finds it unpersuasive, it’s certainly not the boilerplate defense of American “meritocracy” that underlies Republican arguments against affirmative action.

Sometimes, because of his unique perspective on race, he has ended up entirely alone on the Court. The last time Thomas substantially participated in an oral argument was the 2003 case Virginia v. Black, which involved several people who had been convicted under a Virginia statute banning cross-burning. The key constitutional question in such cases is whether the relevant statute penalizes white supremacist expression (which is speech protected by the First Amendment) or intimidation or threats (which, legally, are “conduct” not protected by the First Amendment).

Under Virginia law, the intent to intimidate could be inferred from the act of cross-burning itself, and the burden of proof was on the defense to show that the intent of the act was purely expressive. A majority of the Court found this unconstitutional, essentially holding that to be consistent with the First Amendment the burden of proof had to be on the state to show that a cross-burning was intended to be threatening.

In his dissent, however, Thomas pointed out that the statute was enacted by a segregationist legislature. Obviously, the Jim Crow legislators who voted for the law were not trying to suppress white supremacist expression, but simply realized that cross-burning was virtually always done with the intent to intimidate. And therefore, Thomas concluded, the statute “prohibits only conduct, not expression.” Thomas was right—but no other justice joined him.”

Turkish Beatings

When Turkish President Recep Tayyip Erdogan met with President Trump last week, protesters against his authoritarian and increasingly totalitarian regime were attacked. The New York Times analyzes videos of those attacks to show that many of those attacking the protesters were part Erdogan’s personal security team.

“The New York Times reviewed videos and photos to track the actions of 24 men, including armed members of President Recep Tayyip Erdogan’s security detail, who attacked protesters in Washington last week. Many of the protesters were American citizens.

The men kicked people lying on the ground and put a woman in a chokehold just a mile from the White House. They outnumbered the protesters nearly two to one.

The State Department has condemned the episode, and some American lawmakers have called for the men to be prosecuted. But none have been charged with a crime. Here’s what video of the main actors shows about the identities of the men and the roles they played in the clash.”



Maria Popova pages through Emily Dickinson’s herbarium:

“Long before she began writing poems, Dickinson undertook a rather different yet unexpectedly parallel art of contemplation and composition — the gathering, growing, classification, and pressing of flowers, which she saw as manifestations of the Muse not that dissimilar to poems. (More than a century later, Robert Penn Warren would articulate that common ground in his observation that “poetry, like science, draws not only those who make it but also those who understand and appreciate it.”)

Dickinson started studying botany at the age of nine and assisting her mother at the garden at twelve, but it wasn’t until she began attending Mount Holyoke in her late teens — around the time the only authenticated daguerrotype of her was taken — that she began approaching her botanical zeal with scientific rigor.

Mary Lyon, the school’s founder and first principal, was an ardent botanist herself, trained by the famous educator and horticulturalist Dr. Edward Hitchcock. Although Lyon encouraged all her girls to collect, study, and preserve local flowers in herbaria, Dickinson’s herbarium — with which I first became enchanted at the Morgan Library’s fantastic Emily Dickinson exhibition — was a masterpiece of uncommon punctiliousness and poetic beauty: 424 flowers from the Amherst region, which Dickinson celebrated as “beautiful children of spring,” arranged with a remarkable sensitivity to scale and visual cadence across sixty-six pages in a large leather-bound album. Slim paper labels punctuate the specimens like enormous dashes inscribed with the names of the plants — sometimes colloquial, sometimes Linnaean — in Dickinson’s elegant handwriting.

What emerges is an elegy for time, composed with passionate patience, emanating the same wakefulness to sensuality and morality that marks Dickinson’s poetry.”

American Dreaming

Jennifer Ratner-Rosenhagen considers the radical political possibility of what goes on in our brains when our eyes are closed and our bodies are at rest:

“Because the ‘American Dream’ is such a key phrase of the country’s self-understanding, it feels like a founding ideal of the US. However, it is not so old. It was scarcely used before the historian James Truslow Adams first popularised it in The Epic of America (1931) as both a vision that united centuries of US history, and also a universal human aspiration. It was, wrote Adams, ‘that dream of a land in which life should be better and richer and fuller for every man, with opportunity for each according to his ability or achievement’. The ‘American Dream’ represented equality, social mobility and opportunity…

But what about American dreams in the literal sense? The stuff of nighttime joys and terrors and fantasies and hauntings? There’s no question that the ‘American Dream’ does political work. So might it also be true that Americans literally dreaming at night are engaged in an important political activity?

This isn’t a crazy question. Many societies throughout human history have taken dreams as important, worldly documents. The history of human dreaming shows time and again how dreamers have come to a new understanding about themselves and their world through the processing of their nighttime minds. Dreams have proven to be mental activities through which humans have come to a novel idea, a much-needed methodology, and a revolutionary way of perception.”

You're Out!

Whither the baseball movie, wonders Jay Caspian Kang:

“There’s also a subtle aesthetic difficulty when it comes to baseball movies: Even as modern broadcasts capture more detail, what you see on the screen no longer resembles the nostalgic, pastoral vision of the game. The imaginations of writers and filmmakers have been displaced by mere information.

Baseball, more than any other American sport, has an extensive visual archive, and the change in imagery — the sharpening of focus, the addition of color — always created a sense of progress across eras. Babe Ruth winks in grainy, flickering black and white. In the 1951 home run known as “the shot heard round the world,” you can see Bobby Thomson’s swing, but the camera that tracks the ball out of the park is so jumpy, unsteady and late to the trajectory that it looks as if it were shot on an iPhone by someone six beers in. Bob Gibson and Sandy Koufax come through in blurry, bright color, but you can rarely see their faces as they wind up and throw. By the 1975 World Series, when Boston’s Carlton Fisk seems to will the ball to stay fair with his flapping arms until it’s a home run, you can see the “27” on Fisk’s back and the square outline of his jaw, but the field still looks as if it were lit by mosquito zappers. Baseball nostalgia is tied to the way the game looked at any given moment in the past; the progress of the game is told, more than anything else, by the changes in its imagery.

Last week, I watched a replay of David Ortiz’s game-winning home run in the 12th inning of Game 4 of the 2004 A.L.C.S. It happened nearly 13 years ago, but it could have been last October, the way the scene was presented: the HD video, the score at the top of the screen, Joe Buck calling balls and strikes. We may be past the point when the only way to distinguish among coming eras will be by the change in uniforms. In terms of action and detail, the post-HD eras are likely to all look the same — our eyeballs can’t take in much more than what’s being beamed out to today’s 4K and 1080p televisions. Baseball’s visual clock, which once kept time for a changing country, now seems frozen.”

The Art of Difference

By Alex Lozupone – Own work, CC BY-SA 4.0

Samuel Delany reflects on writes that he is “somebody who is interested in the differences, the differences between straight society and gay, the differences between male and female….” His books explode with a curiosity regarding others. His life, too, has been an opportunity for experiencing difference.

“How did I get from a more or less monogamous heterosexuality in my childhood, which I thought all people lived in, to, at age seventy-four, an open marriage to Dennis, with the trammels of ADD, with the death penalty repealed and reinstated, no ERA passed, but Roe v. Wade the law of the land, abortions tentatively protected but not by much?

All the cars speeding in the opposite direction are grey, black, or white, with a few eccentric reds or blues. My old friend Abe, when we were young, would complain I wrote using too many colors. And yet, back then, the colors were what I loved. Now, true, they don’t seem as interesting as they did, if only because this is no longer an intensely colored land. If anything, it’s the opposite. We pass a billboard on the other side of the road for Hooters, a chesty young white woman in a summer halter standing at the side of the yellow sign.

Box cars to the right of the bus. Newark Airport to the left, and I can see the skyline of Manhattan briefly with a single tower that has replaced the twin towers. It really is dull and ridiculously phallic—even more than the great tuning fork in the sky ever was. (That was my personal nickname for the twin towers in the years before they came down.) We are getting closer to the tunnel from which Bob said I ought to call him. (Phoned Bob in New York. Phoned Dennis in Philly. I am relieved that everything is on track.)

As I was getting ready to leave our Spruce Street apartment, Dennis came back from the Green Street Cafe, bundled up. After a few ridiculously warm days, it’s below freezing again. We’d been out with my daughter and my cousin Nandi the day before.

On Ash Wednesday, one of those warm days, I only saw two people with the traditional cross of ash on their foreheads in the Gayborhood streets of Philadelphia. It seemed fewer than in former years. Are activities of the sexual sort, the real subject of this meditation, replacing it? Is there any connection at all?

Am I taking this trip for sex, for friendship, or just to be able to spread information to people who need it or might benefit? Or all three? Some of them all, I suspect.”


Hilton Als reflects on Diane Arbus and the art of difference.

“The longest conversation I ever had with Mitchell was not about writing, though. It was about the photographer Diane Arbus, and took place around the time The New Yorker published my review of Untitled, her third posthumous book of photographs. (She died by her own hand in 1971.) Both he and Arbus used the word “freaks” to describe their subjects (a word I found disparaging and objected to, albeit silently in his presence). But Arbus’s subjects were unlike Mitchell’s: her photographs showed them pursuing their otherness with a fierce velocity that had little in common with his ultimately more assimilated characters, seen through the skein of his elegant and sometimes ironical prose.

Arbus’s photographs were elegant, too—classically composed and cool—but they were on fire with what difference looked like and what it felt like as seen through the eyes of a straight Jewish girl whose power lay in her ability to be herself and not herself—different—all at once. The story she told with her camera was about shape-shifting: in order to understand difference one had to not only not dismiss it, but try to become it. “I don’t like to arrange things,” Arbus once said. “If I stand in front of something, instead of arranging it, I arrange myself.”…

Still, language was important to Arbus. “Another thing I’ve worked from is reading,” she once said. “It happens very obliquely. I don’t mean I read something and rush out and make a picture of it. And I hate that business of illustrating poems.” But it was the camera that not only gave her license to “go where I’ve never been before” but also, as her more recent biographer Arthur Lubow suggests in his Diane Arbus: Portrait of a Photographer, allowed her to be looked at in return, especially after she started using a square-format Rolleiflex, a camera that allowed her to confront more directly those she photographed, since it didn’t obscure her face. She wanted her queer subjects—all those “other” self-created people whom she memorialized in Manhattan, her wrecked, magical city—to see her difference, too.”

Posted on 28 May 2017 | 9:30 am

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