Professor Tribe: "...a historic clash between different visions of 'Brown' and of the Constitution."

[DeepModem Mom]

NYT: News Analysis
The Same Words, but Differing Views
By ADAM LIPTAK
Published: June 29, 2007

The five opinions that made up yesterday’s decision limiting the use of race in assigning students to public schools referred to Brown v. Board of Education, the landmark 1954 school desegregation case, some 90 times. The justices went so far as to quote from the original briefs in the case and from the oral argument in 1952.

All of the justices on both sides of yesterday’s 5-to-4 decision claimed to be, in Chief Justice John G. Roberts Jr.’s phrase, “faithful to the heritage of Brown.”

But lawyers who represented the black schoolchildren in the Brown case said yesterday that several justices in the majority had misinterpreted the positions they had taken in the litigation and had misunderstood the true meaning of Brown.

And as those reactions make clear, yesterday’s decision has reignited a societal debate about the role of race in education that will almost certainly prompt divisive lawsuits around the country. Indeed, the decision has invited a fundamental reassessment of Brown itself, perhaps the most important Supreme Court decision of the 20th century.

“There is a historic clash between two dramatically different visions not only of Brown,” said Laurence H. Tribe, a law professor at Harvard, “but also the meaning of the Constitution.”...

http://www.nytimes.com/2007/06/29/us/29assess.html

[riderinthestorm]

1. Wow!! An important voice weighs in - stunning. K & R! nt

[Pokey Anderson]

6. Tribe should be on the Supreme Court.

Prof. Laurence Tribe has my utmost respect. He is brilliant, gracious, and truly understands the Constitution.

I had the privilege of meeting him shortly before he was to go before the Supreme Court and argue the Georgia case, attempting to overturn the sodomy laws. That case, Bowers v Hardwick, was lost. It would take nearly two decades for constitutional expert Tribe and the gay and lesbian communities to get that victory, in the Lawrence v. Texas case, which finally overturned sodomy laws, thus keeping the police out of everybody's bedrooms.

Tribe provoked the ire of the conservatives when he testified against the nomination of Bork. Bork's nomination went down in flames. Anthony Kennedy would end up getting that seat.

Jumping up to the present ... many court watchers had predicted that Anthony Kennedy would be the pivot in the court now that O'Connor is gone. Imagine if Kennedy were Bork, folks. And thank Laurence Tribe for putting up a fight. Even though many feel it cost Tribe a chance at a Supreme Court nomination himself, ever, because the Right would never forgive him.

Tribe also testified in the nomination hearings of Alito, and it was NOT favorable. Too bad that nomination couldn't be derailed.

[Spazito]

2. Thanks for posting this!

Roberts twisted the meaning of the words quoted from Brown vs BOE in the most dispicable way. From the article:

“We have one fundamental contention,” a lawyer for the schoolchildren, Robert L. Carter, had told the court more than a half-century ago. “No state has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

Chief Justice Roberts added yesterday, “There is no ambiguity in that statement.”

But the man who made that statement, now a 90-year-old senior federal judge in Manhattan, disputed the chief justice’s characterization in an interview yesterday.

“All that race was used for at that point in time was to deny equal opportunity to black people,” Judge Carter said of the 1950s. “It’s to stand that argument on its head to use race the way they use is now.”

[SoCalDem]

7. Legalese makes it easy to tweak and torture different interpretstions

It's too bad that Brown did not say :

Race MUST be a factor for BLACK children seeking redress for centuries of denial....for at least as long as the time they were denied access..(seems like at least 3 generations might have done the trick, had the order been fairly enforced)

Writing decisions in tortured legalese opens door later for this very twisted interpretation.

Republicans go to school on upending and tweaking language to suit their own purposes..

ONLY a republican could see anti-discrimination as discrimination against their own kind..

[originalpckelly]

3. "Sorry, we've only been oppressing your race for a couple hundred years...

Now you're free, but um, you're on your own. We don't owe you anything after doing that, not one bit at all. Come on you lazy bums get with the program!"

^^^Typical conservative view on affirmative action.

:puke:

[mediawatch]

11. well there is affirmative action

United Negro college fund, AICPA, (provides grants for minorities)

We have some famous AA,I could start at Reverend Jesse Jackson and end at Dr. Condoleeza Rice

so we didn't just cut and run. Lazy they are not and oppressed they are not.

I realize I am not a full Caucasian and that could be why I have no guilt. I laugh at the white so called "liberals" who live in their white neighborhoods full of guilt over slavery that happened a few hundred years ago. These same folks were ready to lynch 3 duke lacrosse players just for being white and wealthy.

[ourbluenation]

4. theres your 5th. Prof Tribe sounds familiar.

did he argue bush v gore?

[Spazito]

5. Yes, he did, he is not liked, to put it mildly by the right-wing

Here is an opinion column he did on bush's illegal wiretapping, it is written in 2006:

Bush stomps on Fourth Amendment
By Laurence H. Tribe | May 16, 2006

THE ESCALATING controversy over the National Security Agency's data mining program illustrates yet again how the Bush administration's intrusions on personal privacy based on a post-9/11 mantra of ''national security" directly threaten one of the enduring sources of that security: the Fourth Amendment ''right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

The Supreme Court held in 1967 that electronic eavesdropping is a ''search" within the meaning of the Fourth Amendment, recognizing that our system of free expression precludes treating each use of a telephone as an invitation to Big Brother to listen in. By 2001, the court had come to see how new technology could arm the government with information previously obtainable only through old-fashioned spying and could thereby convert mere observation -- for example, the heat patterns on a house's exterior walls -- to a ''search" requiring a warrant. To read the Constitution otherwise, the court reasoned, would leave us ''at the mercy of advancing technology" and erode the ''privacy against government that existed when the Fourth Amendment was adopted." This decision, emphasizing the privacy existing when the Bill of Rights was originally ratified in 1791, was no liberal holdover in conservative times. Its author was Justice Antonin Scalia. Justice Clarence Thomas joined the majority. Justice John Paul Stevens wrote the dissent. This issue should not divide liberals from conservatives, Democrats from Republicans.

snip

The legal landscape, too, has changed decisively since the court's majority opined that Americans have no expectation of privacy in the numbers they call. Rejecting the accuracy of that description even decades ago, Congress, which was more vigorous then in its protection of privacy, enacted statutes reassuring us that our phone records would not be shared willy-nilly with government inquisitors without court orders. So it can no longer be said, if it ever could have been, that our ''expectations of privacy" about whom we call are groundless or that we ''consent" to reconstruction of our telephone profiles by using one of the phone companies that, unbeknownst to us, have agreed to share such information (although, we're told, not the content of every call) with NSA on demand.

Privacy apart, this president's defiance of statutes by the dozens is constitutionally alarming. But the matter goes deeper still. Even if Congress were to repeal the laws securing telephone privacy, or if phone companies found loopholes to slip through when pressured by government, the Constitution's Fourth Amendment shield for ''the right of the people to be secure" from ''unreasonable searches" is a shield for all seasons, one that a lawless president, a spineless Congress, and a complacent majority of citizens -- who are conditioned to a government operating under a shroud of secrecy while individuals live out their lives in fishbowls -- cannot be permitted to destroy, for the rest of us and our children.

more

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/05/16/bush_stomps_on_fourth_amendment/

[me b zola]

8. k&r

[enough]

9. K&R

[many a good man]

10. Tribe would be Chief Justice right now

Had the right wing not stolen two presidential elections in a row.

This decision opens the door to years and years of race baiting politics. The issued had been settled and slipping from public consciousness. Now the right wing has their old hook back that will prevent angry white men from voting Democratic. It is a very sad day for America.