Book Review: ‘The Hidden Roots of White Supremacy,’ by Robert P. Jones - The New York Times

Book Review: ‘The Hidden Roots of White Supremacy,’ by Robert P. Jones - The New York Times

Tracing the Origins of American Racism as a Path to Healing

In “The Hidden Roots of White Supremacy,” Robert P. Jones explores the harmful legacy of a 15th-century Christian doctrine used to justify expansion and colonization in the New World.

One of Robert P. Jones’s boldest suggestions is to locate the “roots” of American racism within religious practices developed in the aftermath of Christopher Columbus’s arrival in the New World.Credit...Library of Congress

By Ned Blackhawk

Published Sept. 5, 2023Updated Sept. 6, 2023


THE HIDDEN ROOTS OF WHITE SUPREMACY: And the Path to a Shared American Future, by Robert P. Jones

When Joe Biden became the first sitting U.S. president to use the term “white supremacy” — in a 2021 speech commemorating the 100th anniversary of the Tulsa race massacre — he gave voice to the views of countless other Americans who share his concern about the country’s often forgotten histories of racial violence.

“As painful as it is,” Biden said, “only in remembrance do wounds heal. We just have to choose to remember.” Coming one year after the killing of George Floyd, Biden’s remarks — like much of his presidency — have encouraged national reflection and reassessment.

Robert P. Jones’s stimulating new book, “The Hidden Roots of White Supremacy,” examines a series of such reckonings. In lucid prose and evocative detail, he contextualizes these attempts at racial healing within a broader, and much older, history of injustice and moral failure, suggesting that in order “to understand who and where we are, we need our ‘in the beginning’ to start much earlier.”

To his credit, Jones centers both African American and American Indian oppression, avoiding “the myopic Black/white binary” that silos much contemporary scholarship. “Upstream from the stories of violence toward African Americans,” he writes, “were the legacies of genocide and removal of the land’s Indigenous peoples.” Full of urgency and insight, his book is a compelling and necessary undertaking.

'The 272' traces enslavement practices in the US Catholic church | National Catholic Reporter

New book 'The 272' traces enslavement practices in the US Catholic church | National Catholic Reporter

By Bernard G. Prusak (John Carroll University)

BY BERNARD G. PRUSAK

View Author Profile

August 19, 2023

It is a striking irony of history that the U.S. Supreme Court should have found affirmative action in college and university admissions unconstitutional just when U.S. institutions of higher education are beginning to reckon in earnest with their entanglements in the North American slave economy. 

Share on FacebookShare on TwitterEmail to a friendPrintIt is a striking irony of history that the U.S. Supreme Court should have found affirmative action in college and university admissions unconstitutional just when U.S. institutions of higher education are beginning to reckon in earnest with their entanglements in the North American slave economy. 

As the historian David Blight has remarked, "For so long, at many campuses, including my own, Yale, there have been silences in the books but not in the archives." Brown, Harvard, the University of Virginia, and Yale, among others, have commissioned studies to crack open the archives, finding that, as Justice Sonia Sotomayor put it in her dissenting opinion in Students for Fair Admissions v. Harvard, "Slavery and racial subordination were [from the start] integral parts of the institution's funding, intellectual production, and campus life."

Georgetown University's reckoning with its entanglements in slavery may be the best known case, thanks to a 2016 New York Times article by Rachel Swarns, then a reporter for the Times, now a contributing writer to it and a professor of journalism at New York University. Swarns' article and subsequent reporting brought national attention to the mass sale in 1838 of 272 men, women and children enslaved by the Jesuits in Maryland. The proceeds, ultimately around $4.5 million in today's dollars, shored up Georgetown's shaky finances and enabled the Jesuits to begin "transforming themselves," in Swarns' words, "from an order known as one of the largest slaveholders in Maryland to one that would become synonymous with Catholic education." 

For example, the College of the Holy Cross was founded in 1843, under the name Worcester College. Its founding president was Thomas Mulledy, the former Georgetown president (1829-1838 and later 1845-1848) and Maryland provincial (1837-1840), who along with William McSherry (provincial 1833-1837, president of Georgetown 1838-1839) willed the mass sale to happen, despite the cries of Black people wrenched from family and over the strong objections of some fellow Jesuits. Two buildings on Georgetown's campus bore Mulledy's and McSherry's names until 2015.

It is 

The 272: The Families Who Were Enslaved and Sold to Build the American Catholic Church

Rachel L. Swarns

352 pages; Random House

$28.00

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EPA Resolves Longstanding Litigation to Protect Endangered Species, Ensure Pesticides That Feed and Fuel America Remain Available | US EPA

EPA Resolves Longstanding Litigation to Protect Endangered Species, Ensure Pesticides That Feed and Fuel America Remain Available | US EPA

So resolution of a pre-harm matter is alsowithin the cmpetrern.

 Landmark Legal Settlement Locks in EPA Actions to Protect Endangered Species From Pesticides

Agreement Ends Decades of Pesticide Office Refusing to Comply with Endangered Species Act

SAN FRANCISCO— A historic legal agreement approved in federal district court yesterday afternoon commits the Environmental Protection Agency to a suite of proposed reforms to better protect endangered species from pesticides. The settlement, which covers more than 300 pesticide active ingredients, marks the culmination of the largest Endangered Species Act case ever filed against the EPA.

Under the agreement’s terms, the EPA will develop strategies to reduce the harm to endangered species from broad groups of pesticides, including herbicides and insecticides, while taking further steps to target meaningful, on-the-ground protections to endangered species most vulnerable to harm from pesticides.

These measures to reduce pesticide harms will benefit endangered species and humans alike, as these chemicals are linked to severe health harms in farmworkers and rural communities.

“Pesticides take a devastating toll on imperiled wildlife and are a driving factor in the current insect apocalypse,” said Jonathan Evans, environmental health legal director at the Center for Biological Diversity. “After decades of inaction in the face of terrible harms, the EPA is now committed to much needed actions to protect endangered species, and with the judicial oversight necessary to ensure that changing political winds don’t wipe out lifesaving progress.”

Today’s legal agreement requires the EPA to develop a strategy to better protect endangered species from herbicides by 2024 and insecticides by 2025. The EPA recently released the draft herbicide strategy for public comment. The settlement also requires the EPA to address the harms of eight especially hazardous organophosphate insecticides on endangered species by 2027.

“Many pesticides covered by this agreement are linked to birth defects and cancer in people, so this is a huge step forward for public health,” said Margaret Reeves, a senior scientist focused on environmental health and workers' rights at the Pesticide Action Network. “Protecting the environment from pesticides benefits farmworkers and communities that are suffering from pesticides polluting their soil, air and water.”

The pesticides included in this agreement have a range of severe effects on human health and the environment. Organophosphate pesticides have been linked to reproductive harm and cancers like leukemia and lymphoma. The herbicide dicamba has caused damage to millions of acres of crops and natural areas when it drifts off the intended fields killing other plants.

The Jarkesy Decision and Ramifications for Administrative Proceedings/ Forum on Corporate Governance - Harvard Law School

The Supreme Court in June 2023  Docket # 22-859 granted certiorari on three questions

QUESTION PRESENTED: 

1. Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment. 

2. Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine. 

3. Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.

- GWC 9/28/23

The Jarkesy Decision and Ramifications for Administrative Proceedings

Posted by Robert Stebbins, Abigail Edwards, and Ariel Blask, Willkie Farr & Gallagher LLP, on 

Wednesday, June 29, 2022

On May 18, 2022, in Jarkesy v. S.E.C., a divided Fifth Circuit panel vacated the Securities and Exchange Commission’s (the “Commission” or the “SEC”) affirmation of an SEC administrative law judge’s (“ALJ”) determination that Jarkesy and Patriot28, LLC committed securities fraud. [1] The panel found that (1) the in-house adjudication of the case violated Petitioners’ Seventh Amendment right to a jury trial, (2) Congress unconstitutionally delegated legislative power to the SEC by authorizing it to determine whether to bring these types of cases in an Article III court [2] or before an ALJ, and (3) the ALJ removal protections violate Article II, Section III (the “Take Care Clause”) of the U.S. Constitution.

Background

The SEC pursued this action through its administrative adjudication process. [3] Initial decisions in administrative proceedings can be appealed to the Commission and Commission decisions can be appealed to the federal court of appeals. That appellate review, however, is limited as findings of fact can only be overturned if they are supported by “substantial evidence” [4] and the Commission’s interpretation of the securities laws may also be entitled to Chevron deference. [5]

Historically, the remedies the SEC could seek against respondents in administrative proceedings were limited and until 1990 the Commission could generally only bring securities fraud actions and seek civil penalties in Article III courts. [6] The SEC was first authorized to impose money penalties in administrative proceedings with the Securities Enforcement Remedies and Penny Stock Reform Act of 1990 but only with respect to entities that were required to register with the SEC, such as broker-dealers. [7]

However, in 2010 the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) expanded the SEC’s authority to bring securities fraud actions and pursue civil penalties against non-regulated entities and individuals in administrative proceedings, instead of Article III courts, whenever the Commission, in its discretion, decided. [8] Following enactment of the Dodd-Frank Act, the SEC did not immediately shift its enforcement efforts to administrative proceedings; however, in 2014, there was a sharp increase in such proceedings and an increase in the complexity of the cases brought in such proceedings. [9] This shift was met with criticism and with constitutional challenges. [10] Commencing in 2018, the Commission’s enforcement division drastically cut back on use of the administrative courts, especially as to litigated enforcement cases in which there was an available concurrent federal court forum for the respective claims. [11]

In response to being sued in the administrative forum, Petitioners brought an action in federal district court, and upon appeal, to the D.C. Circuit, alleging that the proceedings violated their constitutional rights. [12] The D.C. Circuit affirmed the district court’s finding that it lacked subject-matter jurisdiction because Petitioners had failed to exhaust their administrative remedies. [13] Meanwhile, the presiding ALJ had held an evidentiary hearing and concluded that Petitioners had committed securities fraud, [14] and Petitioners sought Commission review of that decision.

****

Right to a Jury Trial

The Fifth Circuit panel concluded that the Commission’s decision to bring the case in front of an ALJ, rather than an Article III court, deprived Petitioners of their “fundamental” right to a jury trial under the Seventh Amendment. That right attaches to “[s]uits at common law,” which include “all actions akin to those brought at common law as those actions were understood at the time of the Seventh Amendment’s adoption.” [24] Congress is only authorized to assign adjudication of such a matter to a non-Article III tribunal (here, an administrative proceeding before an SEC ALJ) if the proceeding centers on a “public right.” [25]

According to the majority, to determine if an action “center[ed] on” a “public right,” a court must first determine whether the underlying claim arises “at common law.” Then, if so, a court must evaluate whether the Supreme Court’s jurisprudence nonetheless permits Congress to assign it to agency adjudication without a jury trial. If the underlying claim arose at common law and Supreme Court precedent does not allow agency adjudication, then the proceeding centers on a public right and cannot be assigned to a non-Article III tribunal. The Fifth Circuit panel, in applying this test, found that the rights that the SEC sought to vindicate arose at common law and that no exception applied that would otherwise allow Congress to assign the case to agency adjudication.

Non-Delegation Doctrine

Sen. Menendez: Gag Order and Conditions of release

Senator Menendez and wife Nadine Arslanian

Senator Robert Menendez (D-NJ) was released on a $100,000 personal recognizance bond after agreeing to surrender his personal passport, though U.S. Magistrate Judge Ona Wang of the Southern District of New York noted that he will be allowed to retain any official passport.

U.S. Magistrate Judge Ona Wang said Senator Robert Menendez’ travel will be restricted to the United States unless he undertakes foreign travel for official business purposes. He was forbidden from contact with co-defendants other than his wife and from discussing the case with witnesses, including political advisors, staff and the staff of the Senate Committee on Foreign Relations outside the presence of counsel.

Trump sanctioned for fraud in New York

 New York Executive Law 63 (12)

Whenever any person shall engage in repeated fraudulent or illegal acts or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, to the supreme court of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, directing restitution and damages and, in an appropriate case, cancelling any certificate filed under and...the court may award the relief applied for or so much thereof as it may deem proper.

The word "fraud" or “fraudulent” as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions. The term “persistent fraud” or “illegality” as used herein shall include continuance or carrying on of any fraudulent or illegal act or conduct. The term “repeated” as used herein shall include repetition of any separate and distinct fraudulent or illegal act, or conduct which affects more than one person.

A 35 page summary judgment opinion, if upheld, could spell the end of Donald Trump as a force in the New York real estate world.  Heir to a skein of  middle class low rise Brooklyn apartment buildings, he  transformed himself into an icon of extravagance and bluster.  But now a New York trial judge Arthur F. Enguron labeled Donald Trump a fraud

On November 3, 2022, this Court found preliminarily that defendants had a propensity to engage in persistent fraud by submitting false and misleading Statements of Financial Condition ("SFCs") on behalf of defendant Donald J. Trump ("Donald Trump"). ..accordingly, the Court granted a preliminary injunction against any further fraud and appointed the Hon. Barbara S. Jones (ret.) as an independent monitor to oversee defendants' financial statements and significant asset transfers.

Donald Trump has protested that because his clients and lenders have not filed complaints that  assert they suffered losses.  Justice Enguron responded:

However, that is completely irrelevant. As the Ernst & Young Court noted:

(W]here, as here, there is a claim based on fraudulent activity,

disgorgement may be available as an equitable remedy,

notwithstanding the absence of loss to individuals or independent

claims for restitution. Disgorgement is distinct from the remedy of

restitution because it focuses on the gain to the wrongdoer as

opposed to the loss to the victim. Thus, disgorgement aims to

deter wrongdoing by preventing the wrongdoer from retaining illgotten

gains from fraudulent conduct. Accordingly, the remedy of

disgorgement does not require a showing or allegation of direct

losses to consumers or the public; the source of the ill-gotten gains

is "immaterial."

Spectrum v. Wendler, President of West Texas A&M

Spectrum v. Wendler, President of West Texas A&M

Matthew Kaczmaryk, the Amarillo, Texas based federal judge has again used his post to advance his rightist agenda.  In Spectrum v. Wendler, President of West Texas A&M University, the judge - who sits alone in his West Texas vicinage- embraced he ratified Wendler's rejection of a student group's declared and intention to host "drag" events

The judge quotes at length the WT A&M President:

As a performance exaggerating aspects of womanhood (sexuality,

femininity, gender), drag shows stereotype women in cartoon-like

extremes for the amusement of others and discriminate against

womanhood. Any event which diminishes an individual or group

through such representation is wrong .... Should let rest misogynistic:

behavior portraying women as objects?

Drag shows are derisive, divisive and demoralizing misogyny, no

mater the stated intent. Such conduct runs counter 10 the purpose of

WT. Apersonor group should not attempt to elevate tse oracause by

mocking another person or group.

Asa university president, I would not support “blackface”performances

on our campus, even ifold the performance is a formoffre speech or

intended as humor. It is wrong. Ido not support any show, performance

ora rtistic expression which denigrates others— in this case, women—

for any reason...

Mocking or objectifying in any way members of any group based on

appearance, bias or predisposition is unacceptable ..... No one should

claim aright o contribute to women’ ssuffering viaa slapstick sideshow

that erodes the worth of women. When humor becomes harassment, it

has gone too far,

Justice Clarence Thomas Secretly Participated in Koch Network Donor Events — ProPublica

Justice Clarence Thomas at a private retreat with 

filmmaker Ken Burns, and energy billionaire Charles Koch

The United States Supreme Court is the most powerful court in history.  That is because the nearly unamendable Constitution grants life tenure to its unelected members who are nominated by Presidents, and confirmed by the Senate..  They claim the last word on interpretation of the meaning of the Constitution.  The doctrine of "separation of powers gives them unreviewable authority to police the boundaries of the two elected branches.  They have long claimed similar authority to define the limits of national authority and state powers.

The legitimacy  of this minimally democratic body has long been sustained by the protective aura of its above the fray stance.  Thus its members are subject to no Code of Conduct, and may be removed by Congress only on proof of commission of " Treason, Bribery, or other high Crimes and Misdemeanors.".

The Court  has been self-governing.  Therefore it claims exemption from the Code of Conduct for United States Judges, while asserting that its members use its provisions as guidance.  But recent disclosures of undisclosed hospitality and personal favors afforded to two Associate Justices  by super-rich right wing activists have spurred public debate.  Rhode Island United States Senator Sheldon Whitehouse has offered the Supreme Court Ethics, Recusal and Transparency Act.  The measure - which is certain to fall short of the 60 votes need for passage -  would require Supreme Court justices to adopt a code of conduct, create a mechanism to investigate alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.

- GWC 9/22/2023

Clarence Thomas Secretly Participated in Koch Network Donor Events — ProPublica

By by Joshua Kaplan, Justin Elliott and Alex Mierjeski

On Jan. 25, 2018, dozens of private jets descended on Palm Springs International Airport. Some of the richest people in the country were arriving for the annual winter donor summit of the Koch network, the political organization founded by libertarian billionaires Charles and David Koch. A long weekend of strategizing, relaxation in the California sun and high-dollar fundraising lay ahead.

Just after 6 p.m., a Gulfstream G200 jet touched down on the tarmac. One of the Koch network’s most powerful allies was on board: Supreme Court Justice Clarence Thomas.

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During the summit, the justice went to a private dinner for the network’s donors. Thomas has attended Koch donor events at least twice over the years, according to interviews with three former network employees and one major donor. The justice was brought in to speak, staffers said, in the hopes that such access would encourage donors to continue giving.

That puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term.

Thomas never reported the 2018 flight to Palm Springs on his annual financial disclosure form, an apparent violation of federal law requiring justices to report most gifts. A Koch network spokesperson said the network did not pay for the private jet. Since Thomas didn’t disclose it, it’s not clear who did pay.

96 year old Federal Circuit Judge Pauline Newman Given 1-Year Suspension For Refusing Medical Tests - Law360

 Federal Circuit Judge Pauline Newman Given 1-Year Suspension For Refusing Medical Tests - Law360

By Ryan Davis · 

Law360 (September 20, 2023, 11:00 AM EDT) -- Federal Circuit Judge Pauline Newman was suspended Wednesday from hearing any cases for one year, after the court's other active judges said their 96-year-old colleague derailed an investigation into whether she is mentally fit to serve as judge by not agreeing to medical tests.

Federal Circuit Judge Pauline Newman, shown here in June, was suspended Wednesday from hearing cases for one year. (Haiyun Jiang/Bloomberg via Getty Images)

The appeals court's Judicial Council issued the suspension that was recommended last month by a three-judge special committee that probed claims Judge Newman may suffer from "significant mental deterioration" that makes her unfit to serve as judge.

Judge Newman refused to undergo medical testing by doctors chosen by the committee members, which they said thwarted their investigation. The Judicial Council unanimously agreed with that assessment on Wednesday.

"Judge Newman's refusal, without good cause, to cooperate with the committee's investigation constitutes serious misconduct, as it has prejudiced the effective and expeditious administration of the business of the courts," the council concluded.

The council said while Judge Newman submitted reports from two doctors who evaluated her and said she was fit to remain on the bench, those were "not remotely an adequate substitute for the thorough medical examinations" ordered by the special committee.