Brown gets all the attention.  Loving v. Virginia does not.  In fact, most Americans do not even know the legal history of interracial marriage.  But everyone certainly has seen or heard of Guess Who’s Coming to Dinner.

This year marks the 40^th anniversary of Loving.  In this decision, the court rendered all laws forbidding marriage between persons of different races unconstitutional.  This ruling allowed Mildred Loving, a woman of mixed African, European, and Native descent, to marry Richard Loving, a white race car driver, and live peacefully in their home state of Virginia. 

In the lower court, the state judge opined that “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents…he did not intend for the races to mix.”  In the appeal, the court decided that such separation infringed upon a fundamental right to marry.  Prohibiting interracial marriage became illegal.

How far have we come in 40 years?  Have we moved on up since Helen and Tom Willis?  One may even read interracial intimacy as fashionable.  While Asian children still claim the highest numbers in international adoption, sub-Saharan African children have become “the new black.” Novelist Danzy Senna (who is black, white, and Jewish) proclaims that “America loves us in all our half-caste glory.”  And, of course, the interracial Messiah, that “skinny kid with a funny name” sends us all into paroxysms of miscegenous glee.

And statistics may support a claim of racial freedom in marriage.  In a recent Gallup poll, white approval of interracial marriage increased from 4% in 1958 to 75% in 2007. Without a doubt, the total number of interracial marriages increased (depending on your source) as a result of Loving, from approximately 150,000 in 1960 to 1.46 million in 2000.

Yet, interracial sex is always the trump card for social offence.  Black male athletes dating or marrying white women continues to generate ire and criticism.  Political mud-slinging harps on the interracial dating record of Representative Harold Ford, Jr.  And in 1999, Sen. Bob Bennett predicted no presidential nomination problems for George Bush unless he “step[ped] in front of a bus” or “some black woman comes forward with an illegitimate child.”

Interracial sex, when posed as a threat, when completely illegal, testifies to its enduring taboo. Despite progressive posturing and harmonic celebration, mixed marriages only account for about 4% of all marriages in the United States.  Of this percentage, the of these marriages occurred between Asians and whites.

The largest growth in interracial intimacy occurs in our minds and in art. Undeniably, multiracial families, persons, and partnerships exist, yet the explosion of beige has yet to infiltrate all sectors of American society and culture. Until then, we are all guests at Hepburn and Poiter’s very, very long, long dinner.

No president in recent times, especially when faced with diminishing power within the Congress and in the court of public opinion, has failed to set his sights on credible achievements in the dog days of his administration.  At such times, either the fatigue of nearly eight years in office and the power drain that comes from being a lame duck, or the loss of control of a either House in Congress, forces a president intent on relevance to turn to the extensive administrative arsenal at his disposal.  Presidents Reagan and Clinton are the very best modern embodiments of the power of the administrative presidency.  Each, effectively drained of power in Congress by their respective scandals (Iran Contra and Monicagate, respectively), turned to their agencies to make quiet achievements for constiuents and causes not yet fulfilled.  Although the Bush White House has been effective at using the administrative state to implement its policy revolutions in many significant areas, one ought to expect an increase in the activity of this administration's regulatory output, or its opposite -- a quiet rollback in regulations aready issued by administrative agencies.  In a recent article, the Washington Post reported that the regulatory activity that has most marked the Bush years has been a very active call for review of rules in several agencies, primarily the Department of Labor and the EPA.  The article, points out that the Office of Management and Budget, which reviews major rules, has reached out to regulated industries for suggestions of what rules needed to be overhauled or discarded; most responses came from business. 

In January of 2007, President Bush issued an executive order giving him even more authority over the rulemaking process.  The order, which went into effect in July, requires agencies to articulate the "specific market failure" or other "specific problem that warrent new agency action."  Further, the order increases presidential control of agency rulemaking by conditioning its commencemnt on the approval of an agency's Regulatory Policy Office, appointed by the president.  The substance of this order, according to the Post's Cindy Skrzycki, is to "require regulators to consider free-market solutions to problems before issuing rules."  Every president, of every political stripe, is intent on augmenting his authority.  There is no reason to believe that the power grab (whether on the left or the right) will stop when the White House changes hands, even if a Democrat is elected.   

Presidential power and its use is a structral matter, which like federalism, can sometimes either helpful or harmful to a particular agenda, depending on who wields it.  I have no ready substantive response to the particular issue of whether a president ought to have such power.  And I do not know whether my particular complaints about a particular president ought to guide my answer regarding  how power ought to be distributed.  I write to emphasize the fact that the game is going on, and that the stakes of paying attention (or not) -- particularly at the end of this administration -- are going to get higher (see the recent report on affirmative action in law schools by the U.S. Commission on Civil Rights).  We had better pay attention to this "quiet politics," because its effects will last far longer than the Bush presidency. 

but here are some of the jewels from the opinion (of four justices ) authored by Chief Justice Roberts.  (Justice Kennedy concurs in the judgment, but wants to preserve some shred of possibility that race could someday, somehow be considered in school planning; Dissents by Breyer and Stevens look very juicy).

      Ultimately, Chief Justice Robert’s opinion stands for the proposition that “racial imbalance caused by other factors”  -- that is, factors other than explicit state-mandated segregation in education, cannot be voluntarily addressed by school districts.  So racial imbalance in schools as a result of segregated housing patterns – (patterns caused by a history of housing discrimination, caused by white flight, caused by a tradition of maintaining white sundown towns, caused by redlining, caused by economic inequities, cannot be remediated by the state) is just . . . well, a bummer.    Only a history of de jure, legalized segregation in schools (which didn’t occur in many overwhelming white jurisdictions like Seattle, because they didn’t need these laws to control their minimal black population) can support a plan to achieve racial balance in schools. 

      Even if there were a history of de jure discrimination, Roberts & Co. wouldn’t be convinced that there’s any real benefit to be derived from attaining racial balance in schools.  Remember under longstanding Supreme Court jurisprudence, the use of a racial classification is permissible by a state actor if it is supported by a compelling state interest, and the plan is narrowly tailored to meet that interest.  In the kind of musing that can only happen in a Supreme Court decision post-Thurgood Marshall, Roberts tries to imagine what could be the school’s interest in achieving racial balance:  

While the school districts use various verbal formulations to describe the interest they seek to promote – racial diversity, avoidance of racial isolation, racial integration - - they offer no definition of the interest that suggests its differs from racial balance . . . To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. 

      The  coup de grace is that the more modest a school’s plan to achieve racial balance, the more it undermines the school’s argument that racial balance is important.  In other words, a school district’s effort to narrowly tailor the plan, is now evidence that there’s no compelling interest.  Oh, but a large-scale plan to achieve racial balance would also not pass muster: 

“While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications.”       

      Finally, for those of you who’ve spent a good portion of your professional and personal lives fighting to end racial discrimination in America, Roberts ends the opinion with this simple bromide: 

      “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” 

Thanks Chief.  Thus, the Court distills 40 years of jurisprudence in school cases to this:   state-mandated racial segregation for the purpose of maintaining white supremacy pre-Brown, is the same as a plan voluntarily adopted by a school district to promote racial integration in the 21st century.   

      Let me read it again and then go on to the dissents.  But first, I’ll take a walk.

The media has periodically publicized examples of that practice. A few years ago, Senator John Ford in Tennessee, for example, proudly testified to his maintaining a multi-partner and multi-household family unit in a 2005 child support hearing (http://www.tennessean.com/local/archives/05/01/64558230.shtml).  Even more recently, the Jessie Davis case has brought this issue to the surface.  In its coverage of the case, the media has reiterated countless times, with fascination, the fact that the Jessie Davis maintained an extra-marital relationship and had two children with Bobby Cutts Jr., a married police officer.  The media also speculated that the legal wife of the police officer knew of the relationship between her husband and Davis and harbored no ill feelings towards Davis.

 Amidst the muddled speculations surrounding this poor woman’s disappearance lie a basic fact: Jessie Davis had a spouse-like relationship with Bobby Cutts, Jr. She carried two of his kids and maintained a long-term relationship with him.  In light of that, should women in Davis’s position not be able to seek the same legal protections reserved for De Jure spouses in American Law?  Was Jessie Davis made more vulnerable by the fact that her lifestyle was one that existed at the margins of the law? We might have to answer such questions sooner rather than later.  The reality of multi-partner unions is becoming one from which we might not be able to hide much longer.

    The Duke Rape allegations are instrumental in analyzing the role that race and gender play in the handling of rape cases.  It is a great case study because it shows how catalysts like rape allegations can cause dormant racial/gender wounds to erupt to the surface in an already polarized community. The racial dichotomy and rivalry existing between North Carolina Central University (NCCU) and Duke University became apparent in the types of comments made, at the time of the investigation, by students from North Carolina Central University as compared to comments made by Duke University students.  For example, during the investigation, a student from NCCU was quoted as saying: “If it was a Duke Student and it was Central’s football’s team, the situation would have been handled totally differently (http://www.cbsnews.com/stories/2006/04/05/national/main1476021.shtml) while a Duke University Student stated, in the same spirit, “that the allegations … put a new strain on the already delicate relationship between the school and the community in Durham” (http://www.cbsnews.com/stories/2006/04/05/national/main1476021.shtml) Almost immediately after the rape allegations were made, it became evident from student comments submitted to the media, that for the Durham community, the rape allegations represented not just one isolated incident, but a culmination of slights and abuses of privilege that the community hoped would finally be punished.  The very fact that a team of 43 young Lacrosse players considered the hiring of two African American strippers as an acceptable form of sexual entertainment corroborated this feeling of exasperation.  It is also interesting that, in the midst of the mass obsession with the culpability or non-culpability of the three players, no one took the time to ask the obvious question: Why did the Duke administration offer no remonstrance against the Duke Lacrosse team for hiring black strippers at a team’s party?

The disparity in federal punishment between crack and powder cocaine is thus breathtaking both in quantity and quality.  Even assuming that crack is more addictive -- and thus more harmful -- than powder, there isn't an empirical justification for a 100:1 differential.  And the disparity is even more faulty given that it equates crack possession with powder distribution.  Taken together, the disparity suggests that the sale of large quantities of powder to untold numbers of buyers cause equivalent social harms as the possession, by one person, of crack.  This discrimination cannot be justified -- even if one cannot definitively establish a racial motivation for it -- and it should therefore be found unconstitutional.

That said, I wouldn't hold my breath for a favorable decision from this Supreme Court.

UPDATE:  As Big Man on Campus pointed out in a comment, I mis-stated the issue before the Supreme Court.  It is not, as I initially thought after seeing the docket entry on SCOTUS blog, whether the disparity violates equal protection.  The issue is whether a federal judge may depart from the sentencing guidelines based on a policy disagreement with the disparity.  That issue implicates the justifiability of the disparity so my thoughts remain relevant in that regard.  But the precise issue before the court is not a direct consideration of the disparity's legality.  And it seems, in this context, even more doubtful the Supreme Court will issue a ruling that undermines the disparity.  It would subvert one of the principal purposes of the Guidelines -- uniformity in sentencing -- if judges could depart from the sentencing standards simply on the basis of a policy disagreement. 

To see the conference, visit

http://www.charleshamiltonhouston.org/Events/Event.aspx?id=100027

Do comments like those of Imus indicate that far too many Americans  today still view African Americans  as Justice Taney and his peers did back then?? 

But I wonder why the Democrats can't use their control of Congress to undeclare war and thereby remove the legal sanction for the war effort.  Article I, Section 8 of the Constitution empowers Congress to declare war.  The power to revoke a prior declaration would seem necessarily implicit in that authority.  The fact that Congress has the power to declare war implies that sustained military efforts operating outside the bounds of a congressional declaration are extra-constitutional.  There of course is a rich debate in constitutional-law circles about the extent to which the President, using his authority as commander-and-chief, has the power to pursue military operations absent a war declaration.  But it seems to me that a specific congressional denunciation of the Iraq war effort through a formal undeclaration of war -- a specific revocation of Congress's prior authorization -- would seriously undermine the credibility -- if there's any left -- of the President's position.  I'd like to hear more Democrats discussing this possibility.

Police Crimes

FBI investigates taped LAPD beating

New Orleans Police Beating

Head of Florida Law Enforcement Quits after Making Stupid Racial Remarks: Bush Appointee Compared Black leaders to Osama bin Laden and Jesse James.

A colleague of mine at a northeastern law school recently shared with me her own brush with whiteboying. A white male faculty member of no particular institutional stature had excluded her from a meeting for which her committee duties made it appropriate that she attend. This was not done inadvertently: the white male colleague explained that because he and his black colleague did not get along, he had excluded her to present the best face possible to a job candidate for whom the meeting was scheduled. It was a real-time example of the "personality defense" that has come to be raised to explain away circumstances that are equally susceptible to a reading of discrimination. The black professor’s only "clash" with her white colleague had been to disagree with him on occasion in faculty meetings.

New Jerseyans of a certain age will recall television commercials in which former New Jersey Governor Tom Kean declared, “New Jersey and you, perfect together!”  Kean’s declaration kept coming to mind as I read debate this week – on this site and in other venues – about Lewis v. Harris, the New Jersey Supreme Court’s recent decision holding that the New Jersey constitution requires that gays and lesbians be afforded the same rights extended to heterosexual couples upon marriage, but that the legislature could choose to provide those benefits through a statutory scheme not actually called “marriage.”  Arguments made by states in antimiscegenation cases before Loving also kept filling my head.  It struck me that, for this week at least, we could modify Keane’s tag to say something like, “The New Jersey Supreme Court’s Decision in Lewis and Antimiscegenation Laws: ‘Perfect Together’!”

Admittedly, I have been among those who, like the New York Times editorial page, have celebrated the ruling in Lewis as a victory of sorts.  But I have done so with the kind of reservation and disappointment that former Justice Thurgood Marshall and others must have felt in securing victories in cases such as Sweatt v. Painter, which challenged, among other things, the nature of the school facilities afforded African Americans under Jim Crow’s separate-but-equal laws.  This is an important step on the path to justice, but we have not arrived there yet. 

The New Jersey Supreme Court, in my view, should have gone farther than it did in Lewis.  Chief Justice Portiz, whose concurring and dissenting opinion mirrors my own position on the Lewis case, got it exactly right, when she, in response to her colleagues’ contention that the requirements of the state constitution could be satisfied without providing “marriage” to gays and lesbians, explained:  “’Language and labels play a special role in the perpetuation of prejudice about differences.  We must not underestimate the power of language.  Labels set people apart as surely as physical separation on a bus or in school facilities.  By excluding same-sex couples from civil marriage, the State declares that it is legitimate to differentiate between their commitments and the commitments of heterosexual couples.  Ultimately, the message is that what same-sex couples have is it not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.” 

The principal issue before the Court was the plaintiffs' standing: whether they could show a legally recognizable injury caused by defendants' conduct.  Plaintiffs, as far as I could tell from the oral argument (I haven't yet been able to find the briefs), seem to make two arguments in favor of standing: 1) the size of the estates they inherited from their ancestors was diminished by the lost wages occasioned by defendants' support for slavery -- support representing criminal acts in the Northern states in which many of the defendants were located; and 2) the size of the estates was diminished by the value of the ill-gotten gains obtained by defendants because of their unlawful conduct. 

In questioning the plaintiffs' lawyers, Judge Posner seemed to be grasping at straws -- particularly because the Seventh Circuit heard the appeal of a motion to dismiss, meaning that the plaintiffs did not have an opportunity to discover facts supporting their claims.  On a motion to dismiss, the Court must accept as true the fact allegations supporting a party's claim.  On the lost-wages issue, for example, Judge Posner questioned whether plaintiffs could establish standing given that slavery would have existed without the financing and insurance provided by defendants.  Judge Posner's thinking, apparently, was that plaintiffs' lost wages were not caused by defendants' conduct because, even had defendants not unlawfully supported slavery, defendants' ancestors nonetheless would have been enslaved and presumably would have lost whatever wages sought to be recovered from defendants. 

Judge Posner's reasoning here is flawed both empirically and logically.  Empirically, it is a fact question as to the characteristics American slavery would have had in the absence of the widespread availability of financing and insurance.  Because the Seventh Circuit heard the appeal of a motion to dismiss, the Court necessarily had before it no factual record on this question.  Moreover, on its face, Posner's suggestion that financing and insurance might not have materially advanced the growth of slavery seems suspect, at best.  Surely, credit and insurance permitted slavery -- and the costly oversight apparatus supporting it -- to grow in ways that would not have been possible in a pay-as-you-go system.  In any case, this is a fact question, and district courts conduct evidentiary hearings precisely to find facts.  Judge Posner's raw speculation in the absence of such a hearing is highly improper.

Even more, the logic of Judge Posner's speculation, even if it were factually supported, is legally immaterial.  If an actor commits a tort against another, causing the victim, or the victim's descendants, to suffer economic harm, it is legally irrelevant that some other actors might have committed comparable acts generating comparable injuries.  The conjecture of what some other actors might have done does not undercut -- let alone eliminate -- the liability of known actors who intentionally committed torts that caused knowable injury.  This is a rudimentary legal proposition.

But Posner did not stop there.  On the ill-gotten-gains claim, Judge Posner challenged whether the plaintiffs could identify such gains given that the defendant firms likely would have invested in other activity had they not financed and insured slavery.  Judge Posner also revisited his slavery-would-have-continued-anyway questioning, claiming that plaintiffs could not show harm specifically attributable to defendants' conduct because other firms likely would have financed or insured slavery activities even if defendants had not. 

On the former issue, Judge Posner's questioning is nothing short of breathtaking: I doubt any appellate court in modern history has held that an actor escapes ill-gotten-gains liability by showing it would have realized comparable profits had it chosen to invest in lawful conduct.  That sort of claim is simply beneath a jurist of the stature of Judge Posner.  And the other-actors argument is meritless for the reasons I discuss above.  It borders on the absurd to suggest that an actor can escape tort liability merely by suggesting other lawbreakers would have committed comparable illegal acts.  

Here’s a taste of the Essay:

A Blog Supreme?

Christopher Bracey

American writer and poet laureate Amiri Baraka once remarked that jazz music is “essentially the expression of an attitude, or a collection of attitudes, about the world, and only secondarily an attitude about the way music is made.” The same can be said of the burgeoning field of online scholarship. Many rearguard academics view online scholarship as a perversion or threat to conventional modes of scholarly production. By contrast, those in the academic vanguard appreciate online scholarship, first and foremost, as an organic contribution to the world of ideas, and perhaps secondarily, if at all, as a commentary or critique of prevailing modes of scholarship. Although online scholarship takes shape within and against prevailing modes of scholarly production, it has developed, like jazz, into a distinctive idiom of intellectual engagement with its own cultural aesthetic, norms, and the like. And like jazz, it retains a certain mystery and mystique that proves compelling to proponents and confounding to its critics.

In this Essay, I relate the work of free and avant-garde jazz artists to the work of online legal scholars. I employ this jazz metaphor to advance a deeper understanding of online scholarship and its relationship to conventional modes of scholarship and the scholarly enterprise in general. This is not to suggest that all online scholars should aspire to be the John Coltrane of their field, or to perform as impressively as Coltrane did in his 1964 masterwork, A Love Supreme. Nor do I argue that traditional legal scholars are presumptive “squares” and “moldy figs” in comparison to the “hip” online scholars. Rather, I want to suggest that viewing online scholarship through the prism of the jazz experience helps us appreciate the perspective of many online scholars, the nature of online contributions, and the impact that online scholars hope to achieve upon the world of ideas. The jazz metaphor also sheds light on the manner in which online scholarship will be received in traditional academic circles in the years to come. Indeed, the uneasy acceptance of jazz (particularly the free and avant-garde idiom) by music traditionalists and the general public suggests that online scholarship will at best be understood as a compelling alternative mode of scholarly engagement that accents rather than displaces conventional forms of scholarly expression.

The full essay can be found here.