Friday, May 24, 2024

Talking Antisemitism (and Islamophobia) in Eugene

Earlier this week, I traveled down to Eugene to give two talks (one for students and the general public, the other for faculty and staff) on Islamophobia and antisemitism with Hussein Ibish.

I don't have any truly wild stories to report. We did have one disruption (to which I remarked "we beat the spread!") -- for those of you keeping score, it was a "pro-Israel" disruption -- but he was escorted out with relatively little incident. But overall, the audiences seemed engaged and happy to have us. I had two students separately stop me on the street well after the event was over to say how much they appreciated the event, one of whom was a leader of the campus chapter of J Street U, which was responsible for a very thoughtful letter regarding issues related to the campus encampment and Israel/Palestine questions more broadly that I encourage you to read.

Speaking of which, the university reached an agreement with protesters to disband the encampment while we were out at dinner. One of the administrators involved in the negotiations was on a text chain dealing with some of the issues while we ate! Living history, indeed.

All that said, the most exciting that happened was probably seeing if my Nissan Leaf could travel from Portland to Eugene on a single charge (answer: yes, but we were at 6% when we arrived at the hotel and 2% when we got home). I also started to come down with a cold on the second day (which I'm only just starting to pull out of now), so that was unpleasant. But for the most part, this felt like a successful event in front of a receptive audience that was happy to hear people try to tackle difficult issues about antisemitism and Islamophobia with rigor and care. I'm grateful to the University of Oregon community for having us, and I hope that they found it to be as fruitful and productive as I did.

Thursday, May 23, 2024

Gerrymandering as Constitutional Entitlement

I haven't had the chance to read the Supreme Court's decision today in Alexander v. South Carolina, where the 6-3 Republican majority radically circumscribed the ability to bring racial gerrymandering claims in circumstances where (as often will be the case) there is significant overlap between racial and partisan gerrymandering. I was struck, however, by Nicholas Stephanopolous' analysis which suggests the Court's new rule is functionally that a racial gerrymandering plaintiff must "submit an alternative map showing how the state could maintain its plan’s current partisan balance while fixing the alleged racial gerrymandering," In other words, if an alleged racial gerrymander results in a 6-1 GOP/Democratic House map, plaintiffs must show that there is an non-racially gerrymandered map that also yields that same partisan split.

Alexander is the latest case to emerge out of the gibberish that is Rucho, and the impossibility of disentangling racial gerrymandering (nominally unconstitutional) from partisan gerrymandering (effectively permissible) under conditions of extreme racial polarization. Where there is near-complete overlap between "Black voters" and "Democratic voters", how does one decide if a congressional map which packs all the Black/Democratic voters into a single misshapen district is a "racial" or a "partisan" gerrymander? 

The logic behind the majority position in Alexander is that if one can't create a map that yields the same partisan end goal as the map being challenged, that suggests that the status quo map was chosen not for racial reasons, but rather because it better effectuated the goal of partisan gerrymandering that would otherwise be impossible to achieve. "We didn't draw the districts this way because it drew all the Black voters into a single district; we drew them this way because it was the only way to get the desired political slant."

But this gets things exactly backwards. Even assuming that partisan gerrymandering is constitutional (and it's worth noting that technically, Rucho doesn't say that -- it says it is a political gerrymandering claims are non-justiciable political questions, which is not the same thing), it is not a constitutional requirement that states must be allowed to do it under any circumstance. The more natural conclusion is that if you can't successfully engage in a partisan gerrymander without engaging in racial gerrymandering, then sorry, you don't get to partisan gerrymander (or at least don't get to do so to the same extent). The rule against racial gerrymandering places a limit on the ability to partisan gerrymander.

The majority's rule, by contrast, treats partisan gerrymandering as a constitutional entitlement. Any constitutional rule or principle which disenables a state from engaging in partisan gerrymandering to the fullest extent it desires must yield. Otherwise clearly impermissible and unconstitutional conduct becomes licit if it is the only way a state can implement its God-given right to gerrymander.

This is not the first time the Court has made this mistake. I flagged a similar error in the Court's Glossip opinion relating to Eighth Amendment challenges to state execution protocols. The Court there said that a prisoner challenging an execution protocol as cruel and unusual punishment cannot prevail simply by showing that the state's procedure is barbarous or tantamount to torture. The prisoner must also identify a valid execution protocol, accessible to the state, that he would deem permissible. What happens if there is no such protocol -- if all the methodologies available to the state would be agonizingly painful? The logic of Glossip is that in that case, the state is allowed to torture prisoners to death, because the state simply has to be allowed to execute people.

In both cases, the Court is making a basic mistake, conflating constitutional permissibility with constitutional entitlement. It's obvious when you think about it. The state is permitted to try and solve crimes. The state is not allowed to violate the Fourth Amendment, even if doing so would allow it to solve more crimes than if the Fourth Amendment was not enforced. If the state said that, for every claimed Fourth Amendment violation, a defendant must provide an alternative policing protocol that would allow it to solve as many crimes as if it were permitted to violate the Fourth Amendment freely, and if he can't, then the Fourth Amendment can't be enforced, that would be absurd. The Fourth Amendment places a limit on the ability of the state to solve crimes.

So too here. It might (for sake of argument) be true that capital punishment or partisan gerrymandering are not unconstitutional in the abstract. But that does not imply that in practice there must be a constitutionally-viable pathway to do either of these things. If the state can't figure out a way to conduct an execution that doesn't torture people to death, then it can't execute people. If the state can't figure out a way to partisan gerrymander without engaging in a racial gerrymander, then it doesn't get to do the racial gerrymander. That should be simple. But the Court has elevated the already dubious position that the state is permitted to engage in partisan gerrymandering, or the (somewhat less dubious) position that the state is permitted to provide for capital punishment, and converted these practices into constitutional entitlements. That's not reflective of law; that's reflective of the Court's fanatical dedication to these sorts of policies compelling it to erase the law.

Tuesday, May 21, 2024

Antisemitism in Oregon, Minnesota, and Beyond

I'm heading to Eugene tomorrow to do two events on antisemitism and Islamophobia at the University of Oregon (one Wednesday evening, one Thursday morning). Both events will be with Hussein Ibish, someone who I've long admired and am thrilled to collaborate with on this endeavor.

So what's going on in the antisemitic America this week? Well, the Minnesota GOP is trying to nominate Royce White to take Amy Klobuchar's Senate seat, in spite (or because) of him criticizing "the Jewish elite" and claiming that Jews use the Holocaust "to provide a victimhood cover for their own corrupt practices." It will shock no one to learn he is a Kanye West defender ("They called Kanye West antisemitic because he was pushing a Black Republican or Conservative message wrapped in the gospel."). And while sometimes the story of these far-right antisemitic GOP pols is that they decide to merge hating Jews with loving Israel, White is very much a hater of both: Israel is, he says, "the lynchpin of the New World Order."

In general, while there's a lot more antisemitism in today's GOP than many give it, er, credit for, Minnesota really does seem to stand out from the pack for the regularity with which antisemites emerge as top-level Republican politicos.

That said, while I think White is DOA against Klobuchar (who has throttled far more serious opponents than he), I am very idly curious to see whether he makes inroads amongst the "uncommitted" cadre that (unlike in some states) did seem to perform disproportionately well against Biden in Minnesota. I think the lefty complaint "Biden is worse than Trump on Israel" (or even "Biden and Trump are the same on Israel") is wildly off-base, it is actually arguable that if your only criteria is "who hates Israel the most", White is "better" than Klobuchar. For people looking for a permission structure, White's status as an African-American man who led racial justice protests in the wake of the George Floyd murder certainly helps. Moreover, the Muslim community in America is not as liberal as people sometimes think, and if there is a contingent of, say, the Somali Muslim community in Minnesota that is really committed to Palestine uber alles, well, this race arguably presents a genuinely interesting choice.

Again, I think that Klobuchar will win quite handily. But it wouldn't surprise me if there were some inroads in communities where Republicans historically have struggled. As I've said before, antisemitism is a major growth opportunity for the GOP in minority communities (not because minorities are especially antisemitic, but because minorities most likely to defect to the GOP are in fact disproportionately prone to be antisemitic), and by accident or intentionally they're starting to realize it.

Oh, and Donald Trump is promising a "unified Reich" if he's elected. So there's that too.