John Roberts Keeps Wondering Why We Aren’t Done With This Whole Racism Thing Already

INSIDE: KBJ ... Mike Roman ... Scot Peterson
WASHINGTON, DC - MARCH 01: U.S. Supreme Court Justices (L-R) Amy Coney Barrett, John Roberts, Brett M. Kavanaugh and Stephen G. Breyer attend the State of the Union address by President Joe Biden to a joint session ... WASHINGTON, DC - MARCH 01: U.S. Supreme Court Justices (L-R) Amy Coney Barrett, John Roberts, Brett M. Kavanaugh and Stephen G. Breyer attend the State of the Union address by President Joe Biden to a joint session of Congress in the U.S. Capitol House Chamber on March 1, 2022 in Washington, DC. In his first State of the Union address, Biden spoke on his administration’s efforts to lead a global response to the Russian invasion of Ukraine, work to curb inflation, and bring the country out of the COVID-19 pandemic. (Photo by Saul Loeb - Pool/Getty Images) MORE LESS
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Morning Memo comes to you today from London. Greetings, TPM readers in the UK! Gonna try to be low-key about the July 4 holiday while here …

History Is Not For Amateurs

The Supreme Court was caught trying to do historying again without proper supervision.

The result is an ahistorical mess of a decision on affirmative action in college admissions that reduces the 14th Amendment to a garden party nicety – instead of the hard-won product of a then-new kind of brutal modern warfare and still the deadliest military conflict in American history.

But it wasn’t just the origins of the 14th Amendment that Chief Justice John Roberts got wrong …

When Will It Effing End?

Most notably in Shelby County v. Holder and now in his majority opinion on affirmative action, Chief Justice John Roberts seems almost obsessed with the question of when we can finally bring an end to all of these extraordinarily generous legal accommodations for Black folk.

When? WHEN!

After 300 years of slavery, forced servitude, white supremacy, brutal repression, and systemic oppression, Roberts has a calendar out counting the years – not decades, not centuries – until we can call it a wrap on trying to clean up this historical mess.

Without a whit of self awareness that he is an inheritor of the lineage of conservative white Americans who brought you slave plantations, Reconstruction, “separate but equal,” Jim Crow, the KKK, and violent resistance to the Civil Rights Movement, Roberts rushes to ask: “Are we done yet?”

In yesterday’s decision, he declared that there’s “no end in sight” to affirmative action in college admissions and with that sweeping pronouncement brought the whole thing to an abrupt end.

I mean, really, haven’t we white Americans done enough? We’re what – four or five decades into this now? That seems like a long time. Aren’t we finished?

It’s an unbelievable level of hubris, self regard, and magical thinking.

When I Knew …

I got to the first footnote in Roberts’ majority opinion, and slumped in my chair.

It calls out Justice Ketanji Brown Jackson directly, by name, in way that I cannot imagine calling out a Black woman in public, let alone in an affirmative action case in which I’m writing for a majority of five white justices plus Clarence Thomas. It quibbles with the math and the logic of her dissent, while not engaging with the emotional and intellectual thrust of it.

Don’t misunderstand. Jackson can more than hold her own. She doesn’t need to be treated with kid gloves. And this wasn’t in general more pointed than a lot of the back and forth the justices engage in, but in this context and at this moment, well, I just knew this was going to get worse before it got better.

Speaking Of Footnotes …

One footnote to the majority opinion serves to undermine the whole enterprise. The service academies are essentially exempt from the new no-affirmative action rule:

So Personal

The justices were not holding back yesterday, and as TPM’s Kate Riga notes it got very personal.

What It Was Like Inside The Supreme Court

Via Gary Grumbach of NBC News:

During Thomas’ lengthy concurrence, Justice Ketanji Brown Jackson, the first Black woman to serve on the court, did not look toward, or make eye contact once with Thomas, the second Black man to serve on the court. She sat in her seat at the end of the bench, looking straight ahead, taking occasional sips of her coffee.

She appeared to be visibly angry.

Select SCOTUS Quotes

  • “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” – Justice Ketanji Brown Jackson
  • “Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.” –Justice Sonia Sotomayor
  • “Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent.” –Justice Sonia Sotomayor

So Much To React To

So many eloquent and thoughtful writers on racism, the Civil War amendments, affirmative action, and legal history who do more justice to yesterday’s decision than I can:

Trump Campaign Official Cooperating With Jack Smith?


Former Donald Trump campaign official Mike Roman is cooperating with prosecutors from special counsel Jack Smith’s team in the ongoing criminal probe related to efforts to overturn the 2020 election, two sources familiar with the matter told CNN.

One of the sources said that the agreement, known as a proffer agreement, means that Roman may not have to appear before the grand jury but could instead speak to prosecutors in a more informal setting. Under such an agreement, prosecutors generally agree not to use those statements against them in future criminal proceedings.

One caveat to this: This info is almost certainly coming from Roman’s camp or attorneys for other witnesses, and seems designed to get the word out and paint Roman in a certain light. It doesn’t mean Jack Smith has accepted Roman’s proffer or agreed to a deal. Important new info, but maybe not as definitive as it might appear. Same as with the Rudy Giuliani proffer we talked about in yesterday’s Morning Memo.

The MAL Grand Jury Is Still Active?

The federal grand jury in south Florida that indicted former President Trump in the Mar-a-Lago case is still busy issuing subpoenas, the NYT reports.

Jean Carroll Wins Again

A federal judge has rejected former President Trump’s bid to block Jean Carroll’s defamation case against him on “presidential immunity” grounds. The case – not to be confused with the $5 million judgment Carroll already won against Trump – is set to go to trial in January.

Classic Insider Trading Case

Three Florida men have been charged with front-running on the stock of the SPAC that eventually acquired Trump’s Truth Social. One of the men was on the board of the SPAC, giving him access to confidential information that he allegedly passed on to his buddies, who profited handsomely.

Parkland Acquittal

This borders on voyeuristic, which Morning Memo tends to avoid. But the reading of the verdict in the acquittal of former school security officer Scot Peterson, criminally charged for his failure to confront the gunman in the 2018 massacre at Marjory Stoneman Douglas High School, was so compelling. It’s hard to look away:

See You Wednesday …

Morning Memo is shutting it down for the July 4 holiday. Be safe!

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