Does Ginsburg see eugenic culling as a compelling state interest?
By Jonah Goldberg
July 15, 2009
Here’s what Supreme Court Justice Ruth Bader Ginsburg said in Sunday’s New York Times Magazine: “Frankly I had thought that at the time [Roe v. Wade] was decided,” Ginsburg told her interviewer, Emily Bazelon, “there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”
The comment, which bizarrely elicited no follow-up from Bazelon or any further coverage from the New York Times — or any other major news outlet — was in the context of Medicaid funding for abortion. Ginsburg was surprised when the Supreme Court in 1980 barred taxpayer support for abortions for poor women. After all, if poverty partly described the population you had “too many of,” you would want to subsidize it in order to expedite the reduction of unwanted populations.
Left unclear is whether Ginsburg endorses the eugenic motivation she ascribed to the passage of Roe v. Wade or whether she was merely objectively describing it. One senses that if Antonin Scalia had offered such a comment, a Times interviewer would have sought more clarity, particularly on the racial characteristics of these supposedly unwanted populations.
Regardless, Ginsburg’s certainly right that abortion has deep roots in the historic effort to “weed out” undesired groups. For instance, Margaret Sanger, the revered feminist and founder of Planned Parenthood, was a racist eugenicist of the first order. Even more perplexing: She’s become a champion of “reproductive freedom” even though she proposed a “Code to Stop Overproduction of Children,” under which “no woman shall have a legal right to bear a child without a permit.” (Poor blacks would have had a particularly hard time getting such licenses from Sanger.)
If Ginsburg does see eugenic culling as a compelling state interest, she’d be in fine company on the court. Oliver Wendell Holmes was a passionate believer in such things. In 1915, Holmes wrote in the Illinois Law Review that the “starting point for an ideal for the law” should be the “coordinated human effort . . . to build a race.”
In 1927, he wrote a letter to his friend, Harold Laski, telling him, “I . . . delivered an opinion upholding the constitutionality of a state law for sterilizing imbeciles the other day — and felt that I was getting near the first principle of real reform.” That was the year he wrote the majority opinion in Buck v. Bell (joined by Louis Brandeis) holding that forcibly sterilizing lower-class women was constitutional. In recent years, openly discussing the notion of eugenic aspects of abortion has become taboo. But as Ginsburg’s comments suggest, the taboo hasn’t eliminated the idea; it’s merely sent it underground.
To be sure, some heterodox liberals speak up. The writer Nicholas von Hoffman has written: “Free, cheap abortion is a policy of social defense. To save ourselves from being murdered in our beds and raped on the streets, we should do everything possible to encourage pregnant women who don’t want the baby and will not take care of it to get rid of the thing before it turns into a monster.”
In 1992, Ron Weddington, co-counsel in the Roe v. Wade case, wrote a letter to President-elect Clinton, imploring him to rush RU-486 — a.k.a. “the abortion pill” — to market as quickly as possible.
“(Y)ou can start immediately to eliminate the barely educated, unhealthy and poor segment of our country,” Weddington insisted. All the president had to do was make abortion cheap and easy for the populations we don’t want. “It’s what we all know is true, but we only whisper it. . . . Think of all the poverty, crime and misery . . . and then add 30 million unwanted babies to the scenario. We lost a lot of ground during the Reagan-Bush religious orgy. We don’t have a lot of time left.”
Weddington offered a clue about who, in particular, he had in mind: “For every Jesse Jackson who has fought his way out of the poverty of a large family, there are millions mired in poverty, drugs and crime.” Ah, right. Jesse Jackson. Got it.
Unlike Bazelon, I for one would like to know whether Ginsburg believes there were — or are — some populations in need of shrinking through abortion and whether she thinks such considerations have any place at the Supreme Court.
And while we’re at it, it would be interesting to know what Supreme Court nominee Sonia Sotomayor thinks about such things.
Showing posts with label Judge Sonia Sotomayor. Show all posts
Showing posts with label Judge Sonia Sotomayor. Show all posts
Wednesday, July 15, 2009
Monday, June 29, 2009
Justice has been served!
(The Supreme Court reached the correct decision. Judge Sonia Sotomayor was wrong and I have first hand knowledge of a situation exactly like this one! It's way past the expiration date on affirmative action. Affirmative Action may be one of the reasons that "racisim" still exists. If you can't make the grade, if you can't pass the test, if you can't pull your weight, your race should not provide you with an advantage, ever! Yeah, I said it and you are entitled to my opinion. Congratulations to Frank Ricci and firefighters everywhere!)
By Robert Barnes
Washington Post Staff Writer
Monday, June 29, 2009
The Supreme Court today narrowly ruled in favor of white firefighters in New Haven, Conn., who said they were denied promotions because of their race, reversing a decision by Judge Sonia Sotomayor and others that had come to play a large role in the consideration of her nomination for the high court.
The city had thrown out the results of a promotion test because no African Americans and only two Hispanics would have qualified for promotions. It said it feared a lawsuit from minorities under federal laws that said such "disparate impacts" on test results could be used to show discrimination.
In effect, the court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.
The court's conservative majority said in a 5 to 4 vote that is what happened in New Haven.
"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony M. Kennedy.
Justice Ruth Bader Ginsburg wrote for the liberals on the court and said the decision knocks the pegs from Title VII of the Civil Rights Act.
She read her dissent from the bench for emphasis. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold."
On the last day on the bench for retiring Justice David H. Souter, the court failed to reach a decision on one of its most important cases of the term: whether a conservative group's production of a 90-minute film on Hillary Rodham Clinton amounted to a documentary, or merely a long commercial of the type restricted by the McCain-Feingold campaign finance reform act.
Instead, the court took the unusual action of scheduling new arguments on the case for Sept. 9, before the court's new term begins next October. The court wants new briefings on issues that could lead to the justices declaring unconstitutional that part of the act, formally called the Bipartisan Campaign Finance Reform Act of 2002.
The court's decision probably will lead Democrats to push efforts to have a vote on Sotomayor's confirmation so she can be in place before the September hearing, although it is unclear whether her replacement of Souter would affect the outcome of the case.
Senate hearings on her nomination are set to begin in two weeks.
The New Haven case, Ricci v. DeStefano, has become the ruling that Sotomayor's critics most point to for evidence that she lets her background influence her decisions, even though her role has been somewhat inflated.
The promotion test results produced a heated debate in New Haven, and government lawyers warned the city's civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.
The board split 2 to 2, which meant the exam was not certified. Those who opposed using the results said they worried the test must be flawed in some way that disadvantaged minorities. (The test questions have not been made public.)
The white firefighters filed suit, saying their rights had been violated under both the law and the Constitution's protections of due process.
District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.
The case then went to the U.S. Court of Appeals for the 2nd Circuit, where Sotomayor and judges Robert Sack and Rosemary S. Pooler heard the appeal. Oral arguments lasted an hour, with Sotomayor leading the questioning, as is her reputation. But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, although it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful, and well-reasoned opinion."
Kennedy's opinion referred to the judgment of Sotomayor and the other judges only by noting the short opinion.
Kennedy said the standard for whether an employer may discard a test is whether there is a strong reason to the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.
In New Haven's case, "there is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city," Kennedy wrote.
The case has drawn considerable attention not just because of Sotomayor's role but because of the sympathetic nature of the claim brought by the firefighters, who said they were discriminated against simply because of the color of their skin.
The lead plaintiff, Frank Ricci, is a veteran firefighter who said in sworn statements that he spent thousands of dollars in preparation and studied for months for the exam. Ricci said he is dyslexic, so he had tapes made of the test materials and listened to them on his commute to work.
By Robert Barnes
Washington Post Staff Writer
Monday, June 29, 2009
The Supreme Court today narrowly ruled in favor of white firefighters in New Haven, Conn., who said they were denied promotions because of their race, reversing a decision by Judge Sonia Sotomayor and others that had come to play a large role in the consideration of her nomination for the high court.
The city had thrown out the results of a promotion test because no African Americans and only two Hispanics would have qualified for promotions. It said it feared a lawsuit from minorities under federal laws that said such "disparate impacts" on test results could be used to show discrimination.
In effect, the court was deciding when avoiding potential discrimination against one group amounted to actual discrimination against another.
The court's conservative majority said in a 5 to 4 vote that is what happened in New Haven.
"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony M. Kennedy.
Justice Ruth Bader Ginsburg wrote for the liberals on the court and said the decision knocks the pegs from Title VII of the Civil Rights Act.
She read her dissent from the bench for emphasis. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold."
On the last day on the bench for retiring Justice David H. Souter, the court failed to reach a decision on one of its most important cases of the term: whether a conservative group's production of a 90-minute film on Hillary Rodham Clinton amounted to a documentary, or merely a long commercial of the type restricted by the McCain-Feingold campaign finance reform act.
Instead, the court took the unusual action of scheduling new arguments on the case for Sept. 9, before the court's new term begins next October. The court wants new briefings on issues that could lead to the justices declaring unconstitutional that part of the act, formally called the Bipartisan Campaign Finance Reform Act of 2002.
The court's decision probably will lead Democrats to push efforts to have a vote on Sotomayor's confirmation so she can be in place before the September hearing, although it is unclear whether her replacement of Souter would affect the outcome of the case.
Senate hearings on her nomination are set to begin in two weeks.
The New Haven case, Ricci v. DeStefano, has become the ruling that Sotomayor's critics most point to for evidence that she lets her background influence her decisions, even though her role has been somewhat inflated.
The promotion test results produced a heated debate in New Haven, and government lawyers warned the city's civil service board that if it certified the test results, minority firefighters might have a good case for claiming discrimination under Title VII. Federal guidelines presume discrimination when a test has such a disparate impact on minorities.
The board split 2 to 2, which meant the exam was not certified. Those who opposed using the results said they worried the test must be flawed in some way that disadvantaged minorities. (The test questions have not been made public.)
The white firefighters filed suit, saying their rights had been violated under both the law and the Constitution's protections of due process.
District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.
The case then went to the U.S. Court of Appeals for the 2nd Circuit, where Sotomayor and judges Robert Sack and Rosemary S. Pooler heard the appeal. Oral arguments lasted an hour, with Sotomayor leading the questioning, as is her reputation. But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, although it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful, and well-reasoned opinion."
Kennedy's opinion referred to the judgment of Sotomayor and the other judges only by noting the short opinion.
Kennedy said the standard for whether an employer may discard a test is whether there is a strong reason to the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.
In New Haven's case, "there is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city," Kennedy wrote.
The case has drawn considerable attention not just because of Sotomayor's role but because of the sympathetic nature of the claim brought by the firefighters, who said they were discriminated against simply because of the color of their skin.
The lead plaintiff, Frank Ricci, is a veteran firefighter who said in sworn statements that he spent thousands of dollars in preparation and studied for months for the exam. Ricci said he is dyslexic, so he had tapes made of the test materials and listened to them on his commute to work.
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