Speaker 3
Like every single opinion, I think, tries to claim the mantle of Justice Marshall, Thurgood Marshall. They all are like, yeah, we are the true heirs of Thurgood Marshall here. Majority concurrence is the sense it's insane. It's
Speaker 1
real sick. So Robert says that you had separate but equal after Placivi Ferguson, and then that ends with Brown v. Board. And the Court did that. You know, he's like, we did this. We did. Nice pat on the back. And then we continued the good work from there. He says, quote, in the decades that followed, the Court continued to vindicate the Constitution's pledge of racial equality, which is not how I'd describe Palmer v. Thompson, where they allowed towns to shut down public facilities rather than desegregate them or Milliken v. Bradley, where they held that school districts did not have to desegregate unless it could be proven that the district lines were drawn with racist intent. Right. In reality, the legacy of the Court after Brown was that it eliminated express segregation while reifying and insulating de facto segregation. That's right. Meaning that as long as it wasn't explicit in the law, segregation was not only legal, but protected. Yeah. And this case continues that tradition, right? Roberts claims that he was continuing the work of Brown v. Board. Meanwhile, Justice Thurgood Marshall actually argued Brown v. Board. That's right. The lead lit again. And spent that entire era after it when he was on the court, dissenting from nearly every segregation case that came to the court. Right. Only to have John Roberts shit kicking little cunt. We can edit this. Who spent much of this era trying to undermine the Voting Rights Act, right? Claim to be the heir to Marshall's moral compass, right? Vomit. Right. Just disfucking disgusting. They're overturning backy in which, for all intents and
Speaker 3
purposes, Marshall joined in part and dissented in part because he didn't think it went far enough. Right. Like he didn't like how constrained back he was. And they're overturning it as Thomas points out while claiming Marshall's mantle. It's really grotesque. Yeah.
Speaker 1
Yeah. At one point, Roberts is responding to the dissent and he says, lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive that it required a second founding to undo. I'm like, excuse me.
Speaker 2
Don't fix your mouth to talk to me about the second founding motherfucker. I will fucking hurt you. Do you
Speaker 1
hear me? I want hurt you. Sensorie Annan. Thank you. Thank
Speaker 3
you. Founding, by the way, is a phrase. I don't know if it was coined by him, but is the title of a book by a very liberal historian by the name of Eric Foner, who is cited extensively in a lot of these opinions because he's like one of the lead historians. Right. On the reconstruction era of American history. And so they're really claiming a mantle for you. Right. But like Foner thinks this is all crap. Right. Like 100%.
Speaker 1
Roberts seems to be implying that programs designed to facilitate racial diversity in higher education caused the Civil War.
Speaker 1
put it like that, sounds a
Speaker 1
Yeah. This is just another place where he wants to suggest that the use of race as a factor in admissions is somehow like of a feather with the racism of slavery. Right. Right. That these things are somehow on the same basic page. Yeah. Now, Roberts makes a handful of more specific complaints. He says that a lot of the benefits of diversity in higher education cited by the schools are to amorphous and difficult to measure. Right. The idea being that courts need to analyze these things. So if you don't give us like objective criteria, it's hard for us to analyze it, which is an odd complaint because I feel like if anything, the benefits of diversity are much more measurable than the harm posed by allowing affirmative action, which is mostly just like an abstract complaint about fairness and right. Yes. Right. Right. And I'm not sure about how racial categories are themselves to amorphous. So like for example, schools group Asian students together, which doesn't account for differences between East and South Asians, right? And like, yeah, racial categories are imperfect. Race itself is a social construct. Not sure. I remember John Roberts being so concerned about that when he greenlit like the dragnet FBI operations targeting Arabs and Muslims in Ashcroft and the Iqbal. Right. Yeah. In Trump v. Hawaii, when he signed on to the Muslim ban, right? Thank you. Yeah. All of a sudden he's very woke about race. All you know, oh, the Muslim ban is unconstitutional because it conflates the cosmopolitan northern sections of Iran with the more agrarian southern sections. Oh. He also says, quote, eliminating racial discrimination means eliminating all of it, which feels like it harkens directly to one of his closing lines in parents involved, right? Yes. What he says, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race, which like, boom, I guess he felt was a mic drop, right? Yes. And he's so he's just like, I'm going to do it again. I'm going to revisit that same tautology. Yeah. Yeah. It's like when a guy tells a bad joke in a group setting and no one laughs and he's like, maybe no one heard. And
Speaker 2
like he says it again. Yeah. Surely the people love this. Yeah. This time everyone's going to
Speaker 1
love it. This will be the time that it ends the debate, sir. Right. Just a schmuck and an opinion before we move on that I think spends page after page evading the actual conversation, which is what is discrimination really? Right. You know what I mean? Right. What sorts of discrimination are we actually talking about when we're talking about the eco protection clause? Right. That's the fundamental question here, right? And he wants to imagine that that question is an easy one and it's absolutely not. No. So there's a lot more in here. You could peel this back like an onion for days on end, but I think we need to move
Speaker 3
on. If you do that, it'll just make you
Speaker 1
cry like right. Right. You're killing an onion. That metaphor got layers. So we should move on to a very disturbing piece of American literature. Yes.
Speaker 3
At some point in time in this podcast, I became like the Thomas guy
Speaker 1
and gets his concurrences. I've just been letting that happen. And I think rehab too. And it's been great for
Speaker 3
us. I want to return to send her. This
Speaker 2
gift I've received from my cohost. I'm not, not interested.
Speaker 3
Oh my God. Okay. So Thomas writes a brutal 60 page concurrence longer than the majority opinion where he sets out his own sort of history of race relations in the United States and our legal jurisprudence and laws around it. His history is demented to say the least. I don't want to summarize 60 pages of argument. So I'm going to just go through some things that I think are like really high level points he tries to make. So he says this is an originalist defense of their decision here to end
Speaker 2
affirmative action.
Speaker 3
And he wants to say this case that came shortly after the passage of the 14th Amendment known in legal circles as the slaughterhouse cases is sort of our best insight into what the 14th Amendment means. The slaughterhouse cases, he says, portrayed this very colorblind view of the Constitution where no race can be favored over another regardless. This isn't about helping freed former slaves. This is about equality, colorblindness. And he says things went awry later in infamous cases like Plessy v Ferguson, which helped create Jim Crow and segregation. Right. Separate but equal. He cites Eric Foner, as I mentioned, he cites Akil Amar, a well respected centrist Yale law prof. So I just
Speaker 2
want to mention what both those guys think of the slaughterhouse cases.
Speaker 3
Amar says virtually no serious modern scholar left, right and center thinks that the decision is a plausible reading of the 14th Amendment. And Foner says the court's study distinction between the privileges driving from state and national citizenship should have been seriously doubted by anyone who read the congressional debates of the 1860s. The slaughterhouse cases, as I learned them, were the start of the gutting of the 14th Amendment. Yeah, that's right. The total kneecapping of the privileges and immunities clause of the 14th Amendment and the beginning of the construction of Jim Crow. And Thomas is recasting this as like our original bulwark against segregation that would later be weakened. Yeah. And just nonsense. He also takes a look at laws passed shortly after the passage of the 14th Amendment around the time and offers some really weak
Speaker 1
arguments for why they are evidence. This is the best part of the opinion because he is flailing. Flailing. And just to be clear here, the idea is that like if the same Congress that passed the 14th Amendment with the equal protection clause also passed laws that discriminate based on race by conferring benefits to black people, for example, that would defeat the originalist case against affirmative action. Right.