Blog #119 – Roe vs. Wade, an Alternate Approach: Recusal

Blog #119 – Roe vs. Wade and Supreme Court Appointments

Trump’s promise not to appoint anyone to the Supreme Court who would hesitate to overturn Roe vs. Wade is unethical and an act which invalidates any appointee to the Court who if appointed ruled pursuant to it.  It would violate the U.S. Judicial Code and the ABA’s Model Code of Judicial Conduct. Were Kavanaugh to be appointed, he would have to recuse himself from take part in the consideration of that case, leaving the decisions on it in the hands of the remaining 8 court members. And that obligation to recuse himself would be an on gong one, as long as Trump remains in office – an obligation which might be thrust upon him by the remaining members in considerations from which he would need to recuse himself. .

Those concerned about the future of Roe vs, Wade to the next Supreme Court if Kavanaugh is on it are properly barking loudly out of concern, but up the wrong tree. The problem is one which Trump has created, not Kavanaugh, and which an attack on Trump’s involvement offers the route to the best solution: the prospect of a recusal of anyone he nominates from consideration of the case any time within his own term of office. .

for a more detailed statement of the argument, see, Blog #120 – “Roe vs Wade, An Alternate Approach: Recusal2,”




Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks

This Blog #75 – “Blaming an Un-named “System” for Police Shooting Blacks Is A Cop-0ut,” argues responsibility rests in three areas: Individual perpetrators (the policeman, in the case of the killing of minorities ), the social institutions (police departments, the criminal justice system, and the underlying social, economic, and political system. All need to be named and addressed. They will not all be resolved at once, but transformative measures may begin to address them within the existing system
In a recent The New York Times opinion piece ii, Professor Mullainathan, in “Police Killings of Blacks: What the Data Says” seems to be joining liberals, and even radicals. He argues that the data shows that, although African-Americans are only 13.2% of the population, they are 28.9% of those arrested by the police, and 31.8% of those shot by police. As possible explanations he points to the risks of living in “a high-poverty neighborhood,” the social institutions that “tie race to crime,” the economic policies that limited opportunities.” He concludes “removing police racial bias will have little effect on the killing rate,” presumably because of all these other factors.
“. . [After]… accounting for why some of these encounters [of police with blacks] turn into killings, [racial bias] is swamped by other, bigger problems that plague our society, our economy, and our criminal justice system.”
So far so good.
But he ends the piece with
“…there are also [my italics] structural problems underpinning these killings. We are all responsible for those. “
“We are all responsible.” What started out as a fairly radical move to enlarge the approach to the problem beyond the mere bias of individual policemen, ranging over a whole set of social institutions, and finally pointing to the bigger problems that plague our society, ends up with no idea about what is to be done, no conclusions about what it is that produces these plagues, no allocation of responsibility to any human agency. If we are all responsible, no one, no group, no interests, are responsible, no specific forces “plague our societies.” The system is not wrong; it is plagued by a disease. The disease is not named. The sub-headline for the piece summaries it as “finding some blame in persistent systemic issues.” The system is to blame. The system remains anonymous, incorporeal, inhuman, somehow natural, just there. It is not named or addressed. Blaming it is a cop-out.
The formulation “we are all responsible” is simply wrong. Some benefit from it; others suffer under it. It is man-made (less woman-made), defined by those with power, power which is very unevenly distributed. The 99% are not responsible for it, the 1% are. The formulation “blame in persistent systemic issues” is not a radical criticism of the system, but rather a cop-out,iii undercutting efforts to identify who is actually responsible, avoiding identifying the real changes that might address the roots of the problem the data identifies.
Going beyond the cop-out of blaming “the system,” three actions are needed: first, the actors that implement it need to be specified, second, the institutions that are the framework of their actions need to be confronted, and thirdly the system that underlies their actions needs to be named. Finally, of course, the purpose of all this is to formulate a viable political responses to change he present patterns.
We may look at the human agents responsible for these killing of blacks at three levels:
1) the individual perpetrator, the policeman firing the shots in our case;
2) the social institutions which directly produce, promote and constrain the individual perpetrator’s behavior, in our case the police departments, the criminal justice system, the schools, the housing, and
3) the underlying system, economic, social, political, cultural, which for present purposes I would name the racist/capitalist system (more on its definition below).
1. Firstly, as to the individual responsibility:
it is true that it is “too large a problem to pin on any specific individual officers.”iv But it is individual officers that do the shooting. They are at the flashpoint where the damage is done. Do they have the intent to kill blacks? Perhaps not. They are indeed constrained and subordinate to the system. Yet they have a certain amount of free will. But it is not a matter of an intent to kill blacks, but rather of the actual and predictable and known impact of they actually knowingly dov. In Fair Housing legislation, the law prohibits not only actions undertaken with the “intent to discriminate” but also actions “having a disparate impact” on members of the protected group. The standard for a police officer should be no lower than the standard for a planner or zoning administrator or developer. Certainly, the individual police officer is also subject to the social institutions and agencies– the courts, the legislatures, the schools, and the overall set of criminal justice policies, budget cuts, and social patterns. And is further moulded by the underlying system, with its inequalities, its insecurities and fears and perverse incentives. But holding the single individuals responsible for the direct result of their actions when they have in fact a realistic choice would surely be fair and a major help in avoiding those results. The courts are an appropriate institution to do the fact-finding and the balancing of individual choice against the social and constitution constraint required to deal with the specifics of individual situations, and if they are biased, the tools to deal with that bias are certainly known and in general available.
2. Secondly, as to the social institutions:
If, as Mullainathan and many others properly argue, more or better education is required, it should be provided, if the courts are not doing their jobs as they should, then the judicial system should be reformed; if police departments were reformed and trained, controlled, incentivized, not to shoot and kill, there would be less killing; if a gun culture is partly responsible, it should be addressed by appropriate legislation and civil society condemnation. Such reforms will certainly not be adopted without conflict. There are vested interests, both public and private, behind the institutions as they are, and serious reforms will meet serious opposition from powerful opponents. The distribution of power, rather than the search for justice, makes the fair resolution of these issues difficult. But these institutions have been made by human beings, and they can be changed by them.
While underlying systemic factors mould both the actions of specific actors and of specific institutions, placing some blame for their result properly points to the complexity of the problem, “blaming the system” is no reason not press for remedial actions and reforms, which could ameliorate even the most difficult of the issues involved .. They are not all structural systemic, and it is counter-productive to assume they are, or to think they cannot be significantly alleviated even with the existing underlying system.
3. But, thirdly, as to the underlying systemic issues
Systemic structural issues clearly are involved. There are some problems arising from the underlying system that cannot be solved by simple piece-meal reforms, problems such as inequality, poverty, exploitation, and oppression along class or racial or national or cultural lines, perhaps climate change and environmental degradation. The difficulties even of piece-meal reforms, reformist reforms, are immense as the conflicts about racial segregation
Even the Catholic Church, to the extent that Pope Francis today speaks for it, acknowledges that
If the system is to be properly blamed and then addressed, it must first be named and its key characteristics understood. Karl Marx had a comprehensive analysis, and would simply call the system capitalism. In today’s discussion, movements such as Occupyvii and Pope Francis have somewhat similar approaches:
“While the earnings of a minority are growing exponentially, that of the majority is crumbling. This imbalance results from ideologies which uphold the absolute autonomy of markets and financial speculation, and thus deny the right of control to States, which are themselves charged with providing for the common good.viii.”
“When money, instead of man, is at the center of the system, when money becomes an idol, men and women are reduced to simple instruments of a social and economic system.”ix
“[S]ome people continue to defend trickle-down theories which assume that economic growth, encouraged by a free market, will inevitably succeed in bringing about greater justice and inclusiveness in the world. This opinion, which has never been confirmed by the facts, expresses a crude and naive trust in the goodness of those wielding majority from the prosperity enjoyed by those happy few. This imbalance is the result of ideologies which defend the absolute autonomy of the marketplace and financial speculation. Consequently, they reject the right of states, charged with vigilance economic power and in the sacralised workings of the prevailing economic system.”x
The issues raised here, and underlying the Occupy movements 1%/99% cry, are truly systemic: the level of inequality, the ideology of the free marketplace, the limits on the power of democracy over the state, the role of economic power, the lack of inclusiveness among peoples and groups, are deeply embedded in the system, whichever name is used for it. It is not any old “system” that has the characterisitics of ours today, and should be blamed, but a very specific one that is responsible..
It might take an old-fashioned revolution really to get at the roots of these problems, to do it comprehensively, for they are all interlocked, as the current discussion of intersectionality stresses.
And a revolution is perhaps a theoretical possibility in this period. The new left of the 60’s certainly thought it was fifty years agoxi; the Black Panthers saw themselves as “Vanguards of the Revolution”. Many social activists and their theoretical supporters, from anarchists to Marxists, believed that the seeds of profound change were here then, and their reasoning might well apply today. Today’s systemic economic crisis would provide some grounds for such an expectation. But a revolution does not seem exactly in the cards right now; indeed, one from the right seems much more likely than one from the left, in many places in the world.
The reason revolution is not likely deserves extensive examination, much more than there is room for here xii Those with a vested interest in the present underlying system are powerful, and have convinced many, probably the majority, that they benefit from lt also. The system seems to be producing the goods, as Herbert Marcuse formulated it. But it does not follow that, because we can’t have a revolution right now, nothing can be done to change things as they are, and perhaps even move today to a point in time where the radical changes implied by a revolution could indeed be brought about.
Nor does it help to say: “We are all responsible” for these system-based ills that we are all to blame for them. “We”xiii are not all to blame, at least not in anything like equal measure, and ignoring that fact is both wrong and counter –productive in dealing with the issues. There are specific interests , specific groups, perhaps classes, perhaps the 1% or the .1%, that stand behind the institutions needing change that block that change, block reform. Ignoring their identity undercuts the process of dealing with those who are in fact responsible and to blame for the problem: Their identities are not obscure: the anti—regulators, the low-wage employers in manufacturing and services, the real estate ghetto builders and maintainers, the politicians still seeing advantage in their bigotry, hedge funds and financial speculators. Yes, “we” certainly need to act to change the system, but to get there we need to hold accountable those that are in fact responsible for it’s being the way it is. Much can be reformed within the existing underlying system, even if it is not easy to do and inevitably will be controversial
4. Formulating Responses: Transformative Goals.
But the system is not God-given, nor a natural beast, but one of a number of alternate systems, which may have their own pros and cons, be variably achievable and sustainable, but can be actively pursued here and now by those ill served by the present system. It may take a revolution to achieve the major changes necessary to go to one or another of the alternatives, but it can be done. Legislatures are likely to be the sites of many of these
battles, and the normal mechanisms of liberal democracy, including particularly the electoral procedures, which would need to be used strategically to the fullest extent possible.
“Transformative” is a useful term for the kinds of demands and approaches that bridge the need to deal with all three levels of responsibility outlined above.xiv Two complementary avenues might be envisioned: one pursuing loaded reforms, the other exemplary reforms.
Loaded reforms address directly individual perpetrators and social institutions but stressing their connection with the underlying causes and pointing in the direction of change, pointing out causes, exposing, not only what is happening but why it is happening, who the actors are for and against, what the lines of struggle ultimately are, just who the 1% are, what power they hold and how they benefit from the system, who the 99% are and how they suffer from it. Their hallmarks are seeking the immediately feasible within the system but naming the obstacles to real success: the remaining inequalities and the long-orange systemic alternatives that are ultimately needed for real success.
Such reforms are loaded in the sense that they acknowledge their own limitation, at the same time pointing to the further changes that would be required for substantial structural change. In the shootings of African-Americans by police, reforms in the training of police, in the punishment of offenders, in the availability of guns, etc; but reforms acknowledging that poverty, frustration, misunderstood but real grievances, a search for security as well as safety in the system as a whole, are causes of the police actions and the judicial systems responses that also need to be addressed.
Exemplary reforms bring into existence relationships among individuals and groups , patterns of organization and doing business, rules of behaviour, that pre-figure within the existing system possibilities that can only be fully developed beyond it, but can have real if limited impact within it. Projects such as worker-owned cooperatives, community land trusts, radical educational offerings, participatory budgeting, will not produce structural change by themselves, but will show that real alternatives are available to existing structures and behaviours.
Again, in the police treatment of minorities, projects such as community control of the piece, Planned diversity in housing, full citizenship rights for all residents, are examples that can support movements for more wide-spread and deeper extensions of such approaches.
Blaming “the system,” without naming it, without going beyond addressing individual ills as isolated unrelated problems, will not do. It will not go far to address underlying social issues. Seeing who is responsible for social ills, who benefits from their existence, what institutions need change, are all necessary, and beyond that, pressing for solutions that are transformative, policies that are loaded progressively and exemplary in reality, are needed.


ii October 18, 2015, The Upshot, p. B6
iii I only realized the pun after I used the term: it lets the cop out of responsibility…
iv Mullainathan, supra.
v A paraphrase of the general sense of what creates liability in civil law, on a continuum with culpability in criminal law. For a concise discussion, see Paul H. Robison, Mens Rea, at
vi See blog #70 – The Causes of Discrimination. And they are global in scope, on segregation alone see most recently
vii See Blogs #1-10, supra
x And quotes collected at
xi See Herbert Marcuse, Essay on Liberation, and Peter-Erwin Jansen and Charles Reitz, eds. 2015, Herbert Marcuse’s 1974 Lectures at Vincennes University.
xii See also, even more briefly, Blog #74 – On the Relevance of Herbert Marcuse
xiii See Blog #35 – Watch your Language, Krugman, and the Rest of Us, and Blog #37 – Lopsided Language.
xiv See Blog #30: Transformative Proposals in Nine Areas, at

#68 – Evaluation of Fair Housing: HUD AFFHR and Supreme Court Decision

#68 – Fair Housing: Evaluation of Recent Developments.

[The 5 blogs in this set take up the Supreme Court’s decision in Texas vs. Inclusive Communities and HUD’s Affirmatively Furthering Fair Housing Regulation (AFFHR) (Blogs #68 and #69), posting today) and the broader questions they raise about some elusive general principles dealing with the meaning of social change and the efforts to accomplish it(Blogs #70, 71, 72) posting in the next few days..

This Blog #68 – Evaluation of Recent Developments, examines the reception the Court’s decision and the AFFHR have received and their respective roles in dealing with housing discrimination.

Blog #69 – Fair Housing: Limitations of Supreme Court decision and AFFHR, takes up the limited scope of the AFFHR, the weaknesses in the Court’s decision and the problems of implementation for both.


Blog #70 – The Causes of Discrimination, opens an analysis of the current causes of discrimination, and the attribution of causes to the legacy of slavery and to present actors—the thoughtless, the perpetrators, the collaborators, and the victims, the structural context in which they operate.

Blog #71 – Fair Housing – Remedies and Solutions, then proposes some immediate remedies and some principles for real solutions.

Blog #72 – Social Change: Some Elusive Principles for Societal Change, goes beyond Fair Housing to take up some elusive issues raised by the preceding four blogs.]


#68 – Fair Housing: Evaluation of Recent Developments.

There is an element of unrestrained welcome in the responses to two recent major Federal actions on fair housing, one the Supreme Court’s Decision in Texas vs. Integrated Community Policies, the other is the Regulation Concerning Affirmatively Furthering Fair Housing (AFFH) of the Department of Housing and Urban Development.   The New York Times, for instance, editorially says “The new rule …provides a clear, forceful definition of the law… which means replacing segregated Living patterns with truly integrated and balanced living patters.”[1] The National Resources Defense Council Staff blog speaks of it as an historic and overdue final rule. [2]

The reaction on the other side has been more than just the opposite: The conservative National Review, for instance, went so far as to call the new Regulation “easily one of President Obama’s most radical initiatives.” [3] And “AFFH could spell the end of the local democracy that Alexis de Tocqueville rightly saw as the foundation of America’s liberty and distinctiveness.[4]

But both reactions are overdone. And this aspect, fulsome praise of the AFFH, can seriously detract from efforts to remedy the very serious problems of discrimination that we still face in this country.
Seen in perspective, the advance since Ferguson, Charlestown,, the flag lowering and the AFFH Regulation is limited,[5] and in the AFFH case has within it possible seeds of serious steps backwards in the route to full justice for minorities (an increasingly dubious term) and for racial justice (likewise a term still to be used with caution (African-American justice doesn’t quite cut it either).

To begin with, the existence of a serious problem is indisputable. About 25% of African—Americans live in poor census tracts (where more than 30% have incomes under the poverty level), only about 16% of white households do. A non-poor African-American is more likely to live in a poverty census tract than a poor white household. For the first time in 2014 non-white students are a majority of students in public schools in the United States, and “black students are just as segregated today as they were in the late 1960s, when serious enforcement of desegregation plans first began.”[6] Infant mortality rates are almost two and a half times higher for African-Americans in the U.S than they are for whites, and not just because of poverty in the southern states. In Massachusetts, the rate of infant deaths per thousand for white is the lowest the country, 3.8 per 1,000, but for African-Americans it is 9.2 per thousand, almost 3 times higher. [7]

But there are several limitations to the progress represented by these most recent two actions, the Supreme Court decision and the HUD regulation.

The two events, a Supreme Court decision in a Texas case, and the issuance of a Final Rule by HUD dealing with Affirmative Action to Further Fair Housing, are closely linked, and treated essentially as one in much of the discussion, and in the blogs that follow. Taken together, they have impact in two ways: first on the on-the-ground ability to enforce the established negative goals of the Fair Housing Act, specifically the prevention and remediation of discriminatory acts in housing, acts defined in general terms unchanged since its adoption in 1968, and second, on the impact of such positive provision of housing as there now is on racial patterns of segregation, thus provoking re-examination of the goals of that law, and the public policies relating to race and space of which it is a part.

The first of these impacts, on the negative prevention of acts of discrimination by others, e.g. realtors may not show some houses just to whites, not to blacks. The second is providing that the government does not itself discriminate in such positive provision of housing as it undertakes, e.g. it may not locate subsidized affordable housing only in areas segregated by race. The language of “affirmative” action could be more broadly interpreted to require government to in fact provide housing, in a manner aimed at integration, but neither the Supreme Court decision nor the AFFH program confront that possibility. There is a brief interchange in the Federal Register[8] on the final rule that goes as follows:

Commenters stated that even if the [zoning] ordinance does not violate the nondiscrimination provisions of the Fair Housing Act the jurisdiction may need to adopt an inclusionary zoning ordinance because such a policy would be the most effective means of addressing the identified contributing factors under the circumstances…

HUD Response: The proposed rule provided that program participants would take meaningful actions to further the goals identified in an AFH conducted in accordance with the requirements of this rule and would take no action materially inconsistent with their obligation to affirmatively further fair

They would “take meaningful actions” and “take no actions.” Prohibiting exclusionary zoning is “a meaningful action,” but it falls short of being “the most effective means,” which might be mandating[9] inclusionary zoning. Zoning is never elsewhere mentioned by HUD. There is little in the history of HUD’s use of the Act to suggest it holds to such a broader use of “affirmative.” So there is really nothing new in either the Supreme Court’s decision or HUD’s AFFH rule to suggest that HUD would go beyond “take no actions” to enforce anything as meaningful” as inclusionary zoning.[10]

So the real contribution of the AFFH is its facilitation of the application of the disparate impact standard that the Supreme Court’s decision has legitimized.

The contribution that the decision and the rule make in fact lies in the implementation of the negative prohibitions of the Fair Housing Act, not expanding the meaning of “affirmative.” On the negative side the issue has been what proof is necessary to invoke the Act’s prohibition of housing discrimination. The Act has two definitions of prohibited conduct: acts of “intentional” discrimination, and acts having an “adverse disparate effect” on minorities.

That proof on an “intent” to discriminate” is hard to come by. That is universally recognized, including by the courts, but defendants charged with violation of the FHA have long stoutly maintained it is necessary under the law. The Supreme Court has now validated the use of the disparate impact standard instead, and HUD, through the AFFH Rule, had made it easier for local governments to come up with evidence that there has in fact been an adverse disparate impact.

On the reach of affirmative action neither the Supreme Court’s opinion nor HUD’s AFFH rule provide anything that is really new. What they do do is raise in the minds of many what the ultimate goal of broad and effective affirmative action should be, and specifically what the desirable nature of integration of minorities is and how it is best accomplished. The blogs that follow argue that both the Court’s opinion and the impact of the AFFH will make resolving that issue even harder.

And both the Court’s holding and the AFFH rule have severe limits. Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR. Blog #70 explores the causes of those weaknesses, suggested to lie in their avoidance of the underlying causes of discrimination in housing and planning.


[1] It goes on: “[the Regulation means] transforming racially and ethnically concentrated areas of poverty into areas of opportunity and fostering and maintaining compliance with civil rights and fair housing laws. ”The End of Federally Financed Ghettos,” The New York Times, July 12, 2015, p. Sunday Review, p. 10.

[2] Deron Lovaas’s Blog. “Taking the First Big Step Toward Affirmatively Furthering Fair Housing” Posted July 8, 2015. The Department of Housing and Urban Development (HUD) issued a historic and overdue final rule requiring its grantees to leap forward by “Affirmatively Furthering Fair Housing.” forward.htm. l Natural Defense Council Staff Blog.

[3] It goes on: “AFFH gives the federal government a lever to re-engineer nearly every American neighborhood — imposing a preferred racial and ethnic composition, densifying housing, transportation, and business development in suburb and city alike, and weakening or casting aside the authority of local governments over core responsibilities, from zoning to transportation to education. Not only the policy but the political implications are immense — at the presidential, congressional, state, and local levels.” National Review, July 8, 2015. Available at

[4] Read more at:

[5] On the present state of racism, see my Blog #   , Racism After Ferguson – A Turning Point? at

[6] Reed Jordan, “America’s public schools remain highly segregated.” Urban Wire, August 24, 2014.

[7] Kaiser Family Foundation, Infant Mortality Rate (Deaths per 1,000 Live Births) by Race/Ethnicity, available at    

[9] Zoning is indeed typically a local government activity over which the Federal government has no general jurisdiction, but the final rule is clear that the basis of the Final Rule is HUD’s threat to withhold funding, a threat generally considered adequate to achieve compliance with HUD’s requirements. HUD could if it would.

[10] A Westchester case is a notable exception, and in fact was settled including an agreement that the County provide 450 units of new affordable housing within five years o when the suit was first brought, and its implementation has been tied up in litigation over almost 5 years and the results to date have been not been large, and whether it could have been mandated by HUD under the FHA was never tested in court. See and

Blog #69 now turns to a detailed examination of the specific weaknesses in the Court’s decision and the AFFHR