Manufactured case

I listened to another episode of More Perfect, a series about cases before the Supremes put together by the same folks as Radiolab. I listened to it online. In 63 minutes this episode tells two stories.

The first is a look at Lawrence v. Texas, the case that went to the Supremes and overturned state sodomy laws in 2003. Though John Lawrence and Tyron Garner say they weren't having sex together, the arresting officer claims he caught them in the act. An LGBT community organizer had been looking for a case to challenge the Texas sodomy law and latched onto this one, even though Lawrence and Garner were not ideal plaintiffs. But by the time the case got to the Supremes five years later there wasn't much of either man in the story presented to the Justices. This was the case in which Justice Scalia dissented and in that dissent predicted it would lead to the Court legalizing same-sex marriage – which it did 12 years later.

The second story is about Edward Blum. When he ran for Congress a couple decades ago he decided he would visit every home in the district to introduce himself. In doing so he realized the district lines were quite weird – specifically including this apartment block and excluding that one. He also realized that a good number of the district residents were black. With a bit of digging he discovered that it was a district created as minority-majority. According to the Voting Rights Act there had to be districts with enough minority residents so they could elect one of their own. This district was one of them.

Though Blum lost that election, he found his life mission. Splitting up neighborhoods on the basis of race wasn't right. So he and friends sued. I'd have to listen to the episode again to remember how this case came out. Blum went on, with significant conservative backing, to guide the case Shelby County v. Holder that overturned a key provision of the Voting Rights Act in 2013. Blum was also behind the case *Fisher v. University of Texas* on affirmative action that the Supremes ruled on last week – thankfully against Blum. Blum has now guided 20 cases, six of them before the Supremes.

Some people in this episode are aghast that Blum seemed to manufacture the case against UT. To challenge a law there must be someone harmed by the law. It also helps that the situation could not easily be remedied through popular vote, meaning tyranny of the majority. Blum created a website and video asking upset white students if they think they were discriminated against through UT admissions. Out of 170 responses he chose the one he thought would have the best chances.

Feeling bad about conservatives manufacturing a case? Ah, but it was a common tactic in many civil rights cases, a famous one being Plessy v. Ferguson of 1896. Louisiana had enacted a law requiring that blacks and whites must travel in separate cars on a train. Those who wanted to overturn the law hired Mr. Plessy, who was 1/8 black, to get a ticket in the white car. When the conductor asked for his ticket, Plessy announced, "I'm one-eighth black and I'm staying right here." Plessy was arrested by a security guard (also hired by the legal team) and the legal work began. Alas, when this one got to the Supremes, it backfired. This was the case where the Supremes ruled that separate but equal was just fine with them.