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Posts Tagged ‘private property’

The SCOTUS Rulings You Didn’t Hear About: Colorblind Racism and the Cult of Private Property in America

In Class Politics, Decolonization, GenSex & Queer Politics, Geography/ Spatial Justice, Health Justice, Identity Politics, Racial Politics on June 28, 2013 at 11:08 PM

My head has been swirling with the various, pivotal issues upon which the conservative Roberts Court struck down its gavel this month. Voting rights. Affirmative action. The Patenting of Life. Indigenous Sovereignty. Housing Development. And, oh yeah. Marriage “equality.”

Not entirely familiar with everything on this abbreviated list? You’re not alone. After all, there were a considerable number of issues, all arbitrated by a mere nine people that make up this country’s judicial branch. A mere nine people who adjudicate rulings that govern a breathtaking jurisdiction: the entire united states** and its colonial “possessions,” over 300 million people.

The fact is, not only is wealth super-concentrated and polarized in this world (see videos on global and US wealth inequalities)—so is power and knowledge. Indeed, that something like NSA mass surveillance has been happening—and continues to happen—should not surprise us when we recognize the realities that enable unadulterated greed and the thirst for conquest. So, understandably, the project of trying to get at the roots of the many issues decided on by our “highest” court is daunting. The powers that be would never want us peering behind the curtains that enable them: our time-consuming wage labor, our mainstream media, our nefarious multinational corporations, our Orwellian Security State.

Given the spate of historic rulings this month, I made a deliberate effort to examine some of those minimized, distorted, or completely hidden from the limelight. I also wanted to contextualize some of the more well-known rulings against the backdrop of deeply-entrenched racism and u.s. colonization (without repeating a recurrent mantra found elsewhere on the Web). Unfortunately, I didn’t have as much time to analyze some of these issues as I would’ve liked—let alone trace their roots and connections. But I’ll leave that for another day.

So, please. Feel free to skim. (And share. And digest. And critique.)


A bastion of Enlightenment reason…or kangaroo court for white supremacy?

Colorblind Racism and the Tradition of White Supremacy

1) Fisher v. University of Texas at Austin (June 24)

Verdict: Universities will need to showcase evidence race is a “necessary” component in their admissions policy that can’t be achieved by any other means. 

Between the heart break over the evisceration of our era’s voting rights laws, and the hoopla over same-sex marriage, we might have forgotten about this one. Granted, affirmative action, a pivotal civil rights accomplishment, has been eroded over the years through numerous legislations, the consolidation of a black and brown elite, and the inauspicious rise of the culture of colorblindness. But this ruling still deals a considerable blow to a faltering, yet much-needed, compensatory policy.

In this ruling, the common admissions practice of factoring in race will now be regulated by a vague notion of “good faith.” Universities will now need, if ever pressed, to showcase evidence that it is “necessary” to factor in applicants’ race “to achieve the educational benefits of diversity.” Blanketed under this cover of multiculturalism is a blatant ignorance of politics and history—a perfect ruse for the neoliberal white supremacist state. And so farther thus we go from the promise of a truly liberatory and equitable education.

 Read More: Supreme Court Ruling May Spell The End of Affirmative Action

2) Adoptive Couple v. Baby Girl (June 25)

Verdict: A Cherokee father who has appealed for custody of his daughter under the Indian Child Welfare Act—a legislative attempt to preserve the integrity of indigenous sovereignty—has no parental claims above those of the white couple trying to adopt.

This ruling, which dealt a significant imperialist blow to indigenous sovereignty, got little media coverage outside race-focused news and policy agency Colorlines and the Rachel Maddow Show.

In this case, a Latina Oklahoma woman made a decision to give up her daughter for adoption—in this instance, to a white, non-Native couple, the Capobiancos, in South Carolina.  The biological father, an indigenous Cherokee, had been estranged from the mother throughout the pregnancy and initially agreed to relinquish his parental rights. However, upon learning of the news of the adoption, became upset and decided to take matters to the courts.

The father appealed the adoption under the Indian Child Welfare Act (ICWA), a law enacted in 1978 for the preservation of tribal cohesion in the face of countless Native child adoptions by non-Natives. (As a matter of fact, a cursory inspection of the Act’s history reveals its dark, colonial legacy. From 1958 to 1967, the united states government was directly responsible for a program, the Indian Adoption Project, whose primary aim it was to assimilate Natives into white supremacist amerikkka.) As far as the Cherokee nation is concerned, the daughter, Veronica (“Baby Girl”), is Cherokee and is deemed eligible to live with the biological father. The South Carolina Supreme Court ruled in favor of the father, and she was, against the wishes of the Capobiancos, returned to Oklahoma.

And it is upon appeal, at the Supreme Court level, where the politics of empire and white supremacy are most heinously manifested. In its decision, the Roberts Court undermined the determination of the South Carolina Supreme Court and, more tragically, that of the Cherokee nation by claiming that the ICWA does not bar termination of a father’s parental rights. The father, according to the ruling, was never able to invoke the ICWA because he never had legal custody of the girl.

However, it is the long-term implications of this ruling that are truly disheartening. The concept of indigenous sovereignty, or the rudimentary rationales that prompt a need for tribal preservation, never emerged in the ruling. The centuries of genocidal barbarism and destruction of countless First Nation societies, cultures, and languages were never discussed. And the dismissive attitude of the majority side towards Veronica’s claim to indigenous ancestry—that “she is 1.2% (3/256) Cherokee”—makes apparent the undergirding Amerikkkanist notion of race that guides the notion of how a child should be categorized. Indeed, as if to chastise her colleagues for their substral racism, dissenting Justice Sotomayor felt compelled to mention the “majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee.”

Yet little is said about the rights of Cherokees, First Nation peoples, and the threat this ruling poses to further white adoptions to tribal integrity. Such is the violence of the white supremacist state.

3) Shelby County v. Holder (June 25)

Verdict: The preclearance requirements of the Voting Rights Act of 1965, imposed on certain states to curb discriminatory policies in voter registration, are no longer constitutional.

Although I don’t equate voting in corporation-hijacked elections “liberation,” we should nevertheless call this for what it is: a shameless coup on black and Latino self-determination. If appeal efforts prove unsuccessful, this blatant evisceration of Voting Rights Act of 1965 (sections 4 and 5) will surely go down in infamy Using a logic that is very much aligned with a conservative Court (even with the presence of two non-white bodies, Clarence Thomas and Sonia Sotomayor), a decision was made to eliminate the “preclearance” requirements of states deemed culpable of discriminatory registration practices in the Civil Rights Era.

The decision, delivered by Justice Roberts, was based on two central arguments: 1) the “historic tradition that all the States enjoy equal sovereignty” and 2) that much has changed in the country since 1965. Right. I especially relish this most exquisite pearl of racist color-blind wisdom: “Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” To the extent that efforts at racial parity were ever realized, they likely won’t persist when threats of gerrymandering (redistricting) and voter identification laws are legalized.

Indeed, the voracious thirst for power—and the disenfranchisement of a potentially dissident voting bloc—has already seized the legislature of the affected states. As of today (June 28th), at least five of the nine states under the Section 4 preclearance requirements have forged ahead with voter ID laws.

In the case of Texas, where redistricting and voter ID bills were tossed due to failure to comply with Section 4 requirements, the threat is very inimically real. A federal court had previously rejected the infamous voter ID law because of its “strict, unforgiving burdens on the poor,” and the state’s very own data that suggested Latinos were more likely to lack a certain state-issued ID. Now the voter ID bill has one less obstacle to passage.

Read moreSupreme Court Guts Voting Rights Act 

Colorblind racism

Throughout the centuries, racism has mutated and morphed in various ways. White people who assert “colorblindness” are doing little more than perpetuate a complicity in (post)colonial violence in the age of global neoliberalism.

Housing and Environmental Justice

4) Koontz v. St Johns River Water Management District (June 25)

Verdict: This ruling in favor of a now-deceased developer argues in favor of limits on governmental fees and regulations over private land use—thus opening the door to unfettered displacement and environmental destruction.

Protecting the interests of private property is an amerikkkan tradition. And this ruling, which some of the justices referred to as a “revolution in land use law,” imposes scrutiny and constraints over governmental regulations and fees that would otherwise (so one would hope) benefit local communities and environments. If this doesn’t sound severe to you, imagine how your neighborhood, town, or nearest nature reserve could be impacted by the construction of a behemoth condominium complex…or even a natural gas company.

To understand this case, one must recognize the precedent set by two prior Supreme Court cases, Nollan v. California Coastal Commission and Dolan v. City of Tigard. Together, these constitute the so-called Nollan-Dolan standard, which demands that the government’s request for land development concessions—such as monetary fees or a percentage devoted to public housing—have a “rough proportionality” (reasonability) as required by the Fifth Amendment. (For the Fifth Amendment reads: “nor shall private property be taken for public use, without just compensation”).

In this case, Koontz, who applied to develop a portion of his property in the Floridian wetlands, was denied approval by the local municipality unless he agreed to spend money to improve public lands elsewhere. Using the Nollan-Dolan standard as his defense, he appealed to the Florida Supreme Court, arguing that the concessions were excessive. Defending the municipality’s decision, the Florida Supreme Court then argued that he did not have a claim for two reasons: 1) the Nollan-Dolan standard did not apply to the denial of a permit (as opposed to the approval), and 2) the standard does not apply to a demand for the payment of money.

As regards the first State claim, the Supreme Court unanimously decided that the application of Nollan-Dolan to only permit approvals, and not denials, was arbitrary and would enable all sorts of unconstitutional circumventions. However, the second claim created a 5-4 schism in the Court, with the majority ruling that the exaction of fees was under the domain of Nollan-Dolan and hence subject to scrutiny and litigation under the Fifth Amendment and the Takings Clause (eminent domain).

The dissenting argument, written by Justice Kagan, asserted that a demand for fees in such cases was constitutional and not excessive.  Furthermore, it acknowledged the threat that such fees could result in excessive constraints on local government efforts to regulate land use for the public good. As Kagan writes:

Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development’s impact on the community, like increased traffic or pollution — or destruction of wetlands… Others cover the direct costs of providing services like sewage or water to the development… Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do…. All now must meet Nollan and Dolan’s nexus and proportionality tests. The Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high. And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly.”

And with an ardor only a severe injustice can muster, Kagan even chastises her follow justices:

“The majority’s errors here are consequential.The majority turns a broad array of local land-use regulations into federal constitutional questions. It deprives state and local governments of the flexibility they need to enhance their communities — to ensure environmentally sound and economically productive development. It places courts smack in the middle of the most everyday local government activity.”

Taxed with the bureaucratic nightmare of proving “proportional” concessions from avaricious, profit-centric land developers (after all, who’s under the impression that they’re here out of loyal servitude to the community?), local governments may choose to not entertain development proposals at all (my hope). Or they may just green-light catastrophes.

Gentrification image

Land “development” almost always does nothing to develop the land, but to destroy it (or reconvert it) for the sake of profitable consumption. Consequently, any “development” project you hear of is likely a nicely-worded disguise for environmental destruction (as in the case of Koontz and the wetlands) or human displacement (gentrification).

Patents, Biotechnology, and DNA

5) Maryland v. King (June 3)

Verdict: This ruling opens the door to the warrantless collection—and processing—of DNA for anyone merely suspected of a serious offense.

This one likely flew under the radar amid the more eye-opening revelations of the NSA surveillance scandal three days later. Yet, ironically, it also deals with surveillance (albeit of a slightly different kind). In fact, it’s quite startling how obviously invasive this ruling is in the name of “security,” permitting the collection of DNA for those merely arrested—not convicted—on the basis of “probable cause to hold for a serious offense.”

As far as this case went, Mr. King was arrested in 2009 on assault charges when he was processed through Maryland booking, at which point a cheek swab sample was taken. His DNA was then run against the FBI’s DNA database (“CODIS”), where it was matched to an unsolved 2003 rape for which he was subsequently charged and convicted. The defendant appealed on the virtue of the “unreasonable search and seizure” clause of the Fourth Amendment. Speaking for the 5-4 majority, Justice Kennedy wrote that such processing does not “intrude on respondent’s privacy in a way that [is]…unconstitutional.”

In the dissenting statement, which makes clear that the rape conviction was premised on a database scanning fluke, Justice Scalia writes:

“Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous….

Make no mistake about it. As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

That remarkably little has been said about this case reminds me of the sort of popular obeisance that enabled passage of PATRIOT Act, two catastrophic wars, and, arguably, the PRISM program.


Imagine a world where your a cheek swab sample of your DNA was taken you so much as looked a cop in the wrong way. And now imagine having that DNA checked, processed and stored in an FBI database. Impossible you say? Not after Maryland v. King (2013) it’s not.

6) FTC v. Actavis (June 17)

Verdict: This ruling potentially jeopardizes the affordability of pharmaceutical drugs by refusing to make generic manufacturing payoffs (the so-called “pay to delay”) illegal.  

This case is centered laws regulating the manufacture and sale of generic drugs—a significant issue in the realm of global public health. To reiterate the obvious, drug patents are designed as measures to protect intellectual property and raise prices for pharmaceutical companies. In 1984, however, a bill originally meant to ease the manufacture of cheaper generics was mutated under the Big Pharma lobby to become what it is now: the Drug Price Competition and Patent Term Restoration Act (aka the Hatch-Waxman Act). As a complement to patent law protections, this law now prevents generic manufacturing of brand-name products until after patent expiration—a process that falls under a somewhat complex rubric and can take as long as 14 years.

In this case, Solvay Pharmaceuticals obtained a patent for Androgel, a topical testosterone medication. Subsequently, two competing companies—namely, Actavis and Paddock—filed applications for generic drugs modeled after Androgel, an action that was quite naturally brought to suit for patent infringement.

What proceeded next was nothing less than a back-room dealing. When Actavis’ product was approved by the FDA (in spite of the lawsuit), it chose to not immediately market the product per a “reverse payment” settlement agreement reached with Solvay. Such ‘pay to delay’ agreement had two main conditions: 1) that Actavis not bring the generic to market for a specified number of years, and 2) that Actavis promote AndroGel to doctors in exchange for a multimillion dollar amount. Two other companies—namely, Paddock and Par—made similar settlements with Solvay.

Upon learning of this coercion through the dollar, the Federal Trade Commission sued Actavis, Solvay, and the other companies for unlawfully agreeing “to share in Solvay’s monopoly profits, abandon their patent challenges, and refrain from launching their low-cost generic products to compete with AndroGel for nine years.” A lower court, however, dismissed the suit for “as long as the anticompetitive effects of a settlement fall within the scope of the patent’s exclusionary potential, the settlement [between the two pharmaceutical companies] is immune from antitrust attack.”

Fortunately for us, the Supreme Court did overrule the lower court’s dismissal, asserting that the FTC does have a right to sue on the basis of anti-trust laws. The 5-3 decision thus effectively legalizes anti-trust lawsuits against morally ambiguous “reverse payments”—an unequivocal victory. However, it is now the responsibility of judges throughout the country to arbitrate individual cases to determine whether or not such deals are anti-competitive (i.e. monopoly price-promoting). And this ruling does not assert the illegality of such deals, let alone discourage this habitual, anti-consumer practice that favors profits over people. And given the incredible resources of Big Pharma (with revenues expected to exceed $1 trillion next year) it is unlikely that many successful anti-trust lawsuits are forthcoming.

7) Association for Molecular Pathology v. Myriad Genetics (June 13)

Verdict: This unanimous ruling affirmed that patents on naturally occurring human DNA, as a “product of nature,” is unconstitutional.

This case came about after a Myriad Genetics, Inc. obtained several patents over the BRCA1 and BRCA2 genes—mutations they identified as dramatically increasing the risk of breast and ovarian cancer. Conceding Myriad’s contribution to locating these genes, the Court nevertheless nullified the constitutionality of the patents, stating that products of nature are “not patent eligible.” Its undeniable significance, according to Karuna Jaggar, executive director of Breast Cancer Action, lies in the fact that it puts “patients’ health before corporate profits.”

It is noteworthy, however, that the Court also argued that synthetic complementary DNA (“cDNA”) is patent eligible as it is not a “product of nature.” The ruling also makes it very clear that it does not involve “the patentability of DNA in which the order of the naturally occurring nucleotides has been altered.” Thus, while this ruling made a significant, if not essential, contribution to patent and biogenetic legislation, it still leaves the door open for biotech corporations to tamper with human DNA and unleash potentially dangerous products (as in the case of genetically modified organisms, or GMOs).

Tumors in rats after being fed GM corn

If Big Pharma doesn’t kill you with its many pills, you can always count on big agribusiness to finish the job. The images here are of two female rats with large mammary tumors…not because their genes were directly tampered with, but because they ate genetically modified (GM) corn, with and without herbicide

Reproductive Justice and Same-Sex Marriage

8) Cline v. Oklahoma Coalition for Reproductive Justice (TBD)

Verdict: Pending response from the Oklahoma Supreme Court.

Like the Adoptive Couple case, this one deals with babies—err, potential babies—in Oklahoma. Except that the Supreme Court decided to hold off any “further proceedings” until after hearing from the State Court regarding its interpretation of the law in question

In the case, the Oklahoma Coalition for Reproductive Justice sued various state officials for what was then House Bill 1970—a piece of legislation that heinously sought to regulate how doctors could prescribe abortion-inducing FDA-approved medication.

The violence against women is evident in the very language used in the conclusion of a district court, which stated the purpose of House Bill 1970 was to “impose a substantial obstacle in the path of women seeking a previability abortion.”

9) United States v. Windsor (June 25)

Verdict: You must have been living under a rock if you didn’t hear about this one. Plus, I’ve already written about this one.

** Many of the changes in conventional English grammar are intentional, including lower-cased proper nouns and otherwise “deviant” spellings.

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