Fantastic pieces in Slate’s “Supreme Court Breakfast Table” on double standards in the law. I’ve never understood why “double standard” has taken on such a negative connotation. The idea of making distinctions between, say, a race that was enslaved and legally oppressed for centuries and the race that enslaved and oppressed them strikes me as rather commonsensical. Obviously there’s plenty of room for debate about what the different standards should be and when they should apply, but, you know, there are differences.
Or, as Walter Dellinger puts it (much more elegantly):
To treat membership in all-male or all-female (or all-white and all-black) organizations as logically indistinguishable is to ignore everything we know about history and context. Having the women in an organization get together among themselves and share their experiences may or may not be a good idea. But it is fundamentally different from having the men—who may have run the institution for the last century—have meetings from which women are excluded.
There is no better example of the false triumph of logic over experience than the 1896 decision in Plessey v. Ferguson, where the Supreme Court upheld Louisiana’s law mandating separate railroad cars for white and black passengers in an opinion making the logically correct observation that the law treated the two races exactly alike. It was the court’s Southerner, John Harlan of Kentucky, who, in dissent, uttered the two critical words that destroyed that logic: “everyone knows,” he wrote, before continuing to describe the true meaning of segregation as oppression of the black race.
The best passage in the exchange comes from Dahlia Lithwick:
[Famed constitutional law scholar Herbert] Wechsler’s subjective belief that he was as hard hit by forced racial segregation as Charles Houston suggests that our sense of what’s “fair” is inevitably constrained by the limits of our own experience and imagination. Instead of railing about Sotomayor’s alleged sexism and racism, it’s worth trying to imagine what she knows that we do not yet understand. The only other alternative is to become a nation of bitter, atomized victims, struggling to be the most aggrieved. In his talk at the Brennan Center, John Payton hailed the deep truth in Sandra Day O’Connor’s vision from Grutter, the Michigan affirmative action case: “Nothing less than the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.
The strangest thing about watching angry white men complain about double standards or policies intended to remedy discrimination is the way such complaints always involve complaining about others playing the victim while simultaneously claiming victimhood. Whenever I see, say, Bill O’Reilly, rail about anything related to identity politics, I can’t help but think, “Man, how angry would this dude be if he was black/gay/Hispanic/female?”
-AR
