In today's Wall Street Journal, Jan Crawford Greenburg has a subscribers-only op-ed aobut Justice Clarence Thomas adapted from her new book. She argues that, from the beginning, Justice Thomas has been far more independent and influential than many realize. Here are the opening grafs:
Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive — and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.
That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.
Related Posts (on one page):
- Greenburg on Thomas:
- Miers Wanted Alito:
- Legalities:
The real question, and one I pose to my students--would the Court, the nation's stability, and the Constitution be more endangered by nine justices like Thomas, or nine justices like Kennedy?
9 Kennedys would be unpredictable, because it's hard to play the swing vote game when the other 8 are doing the same thing. It's kind of like the Price is Right where one contestant guesses X, and then the next one guesses X+1, except that at the Supreme Court the first contestant can revise his guess ad infinitum. It's also hard to curry favor with the public as an "agonizer" when the other 8 are doing the same thing. As I see it, much of Kennedy's approach depends on him being one of only one or 2 Justices who acts as he does. On a court of 9 Kennedys, 7 of them would probably leave the judiciary in frustration.
I'd prefer 9 Thomases.
9 Robertses would produce consistently narrow, unanimous opinions. Each justice would write exactly 1/9 of the opinions.
True, at the time of Thomas' confirmation there may have been a popular conception that he and Scalia would perform indistinguishably on the bench. But anyone who has followed the court seriously knows that not to be true.
Shouldn't the "real" question litany also consider the litigants'/nation's liberty? Stability and a Constitution protected from "danger" are nice, but quite secondary to liberty in my view.
As for 9 Kennedys, I'm not sure it would be a whole lot different from the Burger Court. A lot of ad hoc decisions, a lot of opinions without any solid grounding in precedent. It would be a mess.
The notion that Thomas is intellectually unfit to be on the Supreme Court did not become universally held by accident. It was crafted by a particularly ugly mix of Left-wing arrogance and racial stereotyping.
One of many reasons that the MSM is not so welcome in my house anymore.
The CW is that Thomas is a tool. See Talk Left, for a laugh, if his name comes up. A tool at best.
The problem is that this spin is the one the MSM have chosen.
The point that those who have followed the court closely know better is exactly the point. You have to be an expert to know you're being conned by the MSM and democrats. You'd never know, otherwise.
Does the fact that you have to be an expert with time on his or hands to know this relate to a larger issue? Just asking.
And let's not forget Harry Reid's comments about Thomas. Partisan, to be sure -- but at the same time, the fact remains that he would never have said it about any of the other conservatives on the Court. And he wouldn't have said it about Thomas if he didn't think it were generally believable.
9 Kennedys- 9 separate concurring opinions, trying to reach a nuanced middle ground, and, by nuanced, I mean muddled.
9 Robertses- every opinion per curiam, kicking the case out for procedural reasons ("It is unfortunate the petitioner didn't have standing..."). Court is able to decide 2000 cases a year, all with the same result- the Supreme Court doesn't decide cases.
9 Breyers- Would conduct jurisprudence by a mixture of advanced scientific polling of the American people, a legislative subcommittee composed of the clerks, and opinions from a few Traynor cases he had kept in the attic.
9 Ginsburgs- Would find some precendent from the Hungarian Supreme Court (2002) and Israeli Supreme Court (1996) to base their decisions on.
9 Scalias- would make abhorrent conservative rulings, unless it is a criminal defendant/civil liberties/4th amendment case, then he makes principled, judicial rulings.
9 Souters- Would spend too much time raising extraneous, argumentive points during oral arguments to ever hit substantive issues.
9 Stevens- would make principled, conservative rulings. Because he's a conservative jurist. He said so.
(Alito's too new for me)
So that could be a) Thomas following the intellectual acumen of Scalia b) Scalia following the intellectual acumen of Thomas, or c) both justices arrive at the same conclusions independently.
Is there anyone in the world who thinks it is b?
Couldn't it be true even if no one thinks it?
Scalia and Thomas are no more closely paired than any number of other pairs of Justices who occupy similar portions of the ideological spectrum.
If you want a good illustration of the dissimilarity in philosophies, consider one of the most notorious decisions of recent times, Hamdi v. Rumsfeld. Scalia's dissent is here; Thomas' dissent is here. I'd hate to think of this as a case where they were both counted as "voting the same way" (although they probably were), since the two opinions are polar opposites.
But getting back to the general public, how much of the linking of Scalia and Thomas can be attributed to conservative types? After all, Bush was famously on record as saying he wanted to "appoint more Justices like Scalia and Thomas." I don't recall anybody on the right or left saying in response, "gosh, what could he mean by that? I don't think they're all that similar."
Your example is disingenuous. Scalia is famous (see my example above) for protecting civil liberties and criminal defendants. His issue with the Hamdi case was the use of a due process test designed for routine administrative proceedings (denial of welfare benefits) for a criminal proceeding (habaeus corpus). According to Scalia (and Stevens, and the Constitution), you either charge someone with a crime,or you let them go.
Thomas, in his dissent, practiced what is called result-oriented jurisprudence. He went for the due process test but couched it only in terms of govt. interest, and basically explained that when govet. explressed an interest, there was no other interest (I know, I'm simplifying AND being unkind, but it wasn't much of an argument).
Why is Thomas's opinion particularly bad in Hamdi? Because he uses the majority opinion (which Scalia correctly eviscerates, because O'Connor pulled her due process out of civil litigation) which is a balancing test, and then explains that there is no balance here, because, well, the government sez so. In other words, I'll use the wrong balancing test, and if the govt asks me not to balance, I won't.
As for Scalia and Thomas not being in lockstep- you're right and wrong. They are more in lockstep than any other judicial pair (no stats for 2006). But I don't think it's because Thomas is Scalia's lapdog; I think (other than Bill of Rights cases) Thomas and Scalia have similar jurisprudence.
Pick a year at random and you'll be wrong about this more often than you'll be right. Also, given the number of times one or the other writes separately, focusing solely on results neglects the fact that they very often take completely different roads to reach the same result.
I'll look for the data, but I'm 100% I've seen statistical analysis of voting clusters, and Scalia and Thomas are not the top affiliated pair.
Also, you write:
Scalia is famous (see my example above) for protecting civil liberties and criminal defendants.
I think you mean to say that he's "famous" for protecting them in direct proceedings. He is certainly not "famous" for such rulings on collateral review.
Since Thomas has joined the court:
1. He has been on the same 'side' as Scalia more than any other justice.
2. He &Scalia win the 'most frequently paired' jurist competition most frequently. This continued to hold in 2005, with the exception of our newest jurists (Alito &Roberts). 84%* (Scalia and Roberts were at 85% but there were recusal issues).
3. Overall, the least probable event that could occur in the second Rehnquist court would be for Scalia and Thomas to disagree (see A Pattern Analysis of the Second Rehnquist U.S. Supreme Court).
But what does it mean, Basel?
Thomas has one major difference from every other current justice on the Supreme Court- a complete disregard for stare decisis. Scalia will wrestle with it. Others give it a huge degree of importance. Only Thomas would be willing to ignore it completely, and operate as if it did not bind him. Otherwise, the major difference (as I pointed out above) between Scalia and Thomas is that Scalia has a much more BofRights oriented jurisprudence, esp. 6th &4th, which makes him look almost 'liberal' in certain cases.
I relied on the years 1994 - 2002, and also used tables from 2005 (to illustrate the most current year).
You can look up the math &study for 1994-2002( translated into html) at:
Study is here
I don't understand the methodology of your source. Akin Gump's analysis (pdf link) of the 2005 Term shows O'Connor and Souter agreeing 96% of the time. Excluding O'Connor, Roberts and Alito claim first prize with 89% agreement, just ahead of Souter and Breyer at 88%.
The report goes on to note that Scalia and Thomas only disagreed as to the judgment - an overly simplistic measure - 5% of the time, but even that is equivalent to the disagreement rates of Roberts-Scalia and Roberts-Alito.
Really, the notion that there's something unique about the agreement rates between Thomas and Scalia would be laughable if so many people didn't have a preconceived notion.
I could not find an affinity datum for scalia-thomas in that paper. That isn't to say it's not there, but I skimmed it twice and couldn't find it. Could you be more specific?
Over the time they have been on the Court, they are the two most commonly in agreement. But that, of course, doesn't mean anything about Thomas being deferential.
(from page 9)
Since Table 1 informs us that
any two justices agree at least 47% of the time, joint probabilities are displayed in
complementary form, viz., the probability that two justices disagree. This is shown in
Table 2. Thus , the least probable event is that justices Scalia and Thomas disagree,
6.6%, and the next most unlikely event is that justices Ginsburg and Souter disagree,
9.6% of the time.
As to the stereotypes that dog Thomas on the Court, there are a couple of factors at play:
First, Thomas's silence during oral argument — his failure to ask any questions when facing what Robert Bork looked forward to as an "intellectual feast" — strikes many interested observers as strange. It hints at a lack of curiousity or closed-mindedness. (Those few instances when he has spoken from the bench, as in the cross-burning case, have been closer to gut-wrenched growls than to the give-and-take of other Justices.)
Second, as JosephSlater has observed, the incessant pairing of "Scalia and Thomas" has become as much a conservative as a liberal trope.
Finally, Thomas got off on the wrong foot-in-the-mouth when Bush 41 cynically claimed he was "the most qualified" nominee available. Whatever one thinks of Thomas's jurisprudence, and whatever one's political stripe, this was just demonstrably untrue. (GHWB's subtext might as well have been: "You liberals want a black Justice? I'll give you a black Justice, and when you get him you won't ask me for one again.") It also hurt Thomas's case that he replaced Thurgood Marshall, who (whatever one thinks of his jurisprudence) was a legitimate civil rights hero.
Excluding O'Connor (since she was voting when the Court was giving out its unanimous decisions) and Alito (who wasn't), the highest agreements were Scalia and Thomas (89%) and Roberts and Scalia (89%). [Note though that Roberts and Alito agreed with each other 90% of the time.] The next highest agreement was Breyer and Souter (85%).
My guess is that the highest rate of agreement is Roberts and Alito followed by about equal agreement between Thomas and Scalia, Breyer and Souter, and Roberts and Scalia.
No, I think it is more likely refering to statements about Thomas being a "house n----r", "Uncle Tom", and "traitor to his race", -- statements made long after the Anita Hill business was old news.
I've heard anecdotally that former law clerks of Thomas are shunned, employment-wise, by the most prestigious law firms and universities. It's the kind of thing that is hard to quantify, but if it were true, it would be an example of the low-esteem in which Thomas is held.
I wonder if any law professors or high-powered lawyers can comment on this?
I disagree. It is true, of course, that Justice Thomas's decision to forego what is, in most cases, self-indulgent and meandering banter with counsel is out-of-step with current Justices' practices. But, it is consistent, I think, with the norms that prevailed until relatively recently.
And, I think it would be a mistake to take his decision in this regard as signalling a lack of curiosity. His colleagues and those who know him know well that he is among the best-prepared at oral argument, and always has the record cold. I suspect he thinks that he respects counsel, rather than displays closed-mindedness, by not grandstanding.
Over the time they have been on the Court, they are the two most commonly in agreement.
Here's the same Akin Gump memo (pdf link) from 2004. Yet again, the Scalia-Thomas pairing ranks behind several other pairings of Justices in terms of agreement percentages. And the memo indicates that they disagreed even more often, relative to the other Justices, during 2003.
I'm not, obviously, trying to make the case that Scalia and Thomas are complete opposites, but I frankly think they're MORE independent of one another than one would typically expect from the two judges at the rightward extreme of the Court. By comparison, there were years when Justices Brennan and Marshall agreed with each other 100%.
Why assume that either Thomas or Anita Hill deserved the vitriolic personal attacks they received. It is possible for two people in a disagreement to both be partially wrong and partially right. Indeed, it seems to be the norm.
A very good question is whether we need a unified court. Take a look at the disaster of Brown v. Bd. of Ed.
Realistically, of course, voting together must be considered in the circumstances. E.g., when Thomas is the lone dissenter, which he sometimes is, he differs from Scalia, but that difference is practically pretty meaningless. Differing in a 5-4 decision, by contrast, would be enormously important.
..... the least probable event that could occur in the second Rehnquist court would be for Scalia and Thomas to disagree (see A Pattern Analysis of the Second Rehnquist U.S. Supreme Court).
Of course this is the relevant point, not where they came in during a particular year.
It is the percentage of agreement over Thomas' tenure on the court that tells us how closely he and Scalia agree. To look year by year is incorrect. So what if they are in second place every year? If the first place pair changed every year Thomas and Scalia could easily still have the highest rate overall.
Perhaps I'm being naive, but one of the things I like best about Greenburg is that I'm still not really sure where she stands (cf. Totenberg, Lithwick, Greenhouse et al, whose every piece practically drips with their opinion). At very least, she does a better job hiding her views than do many reporters. At best -- look at the way she politely hung Justice Breyer out to dry at the recent FedSoc/ACS Scalia/Breyer debate.
The actual quote is:
The most important words here are "among the highest." No one disputes that Scalia and Thomas agree a lot of the time. The point is that their level of agreement is completely normal for two Justices who are ideologically similar, and that you could find many other pairs who agree as often or more so. Thus, the claim that Thomas does nothing but follow Scalia's lead is fallacious.
I guess we disagree on the significance of a lone dissent. To me, it demonstrates strongly independent thought. It's like you're suggesting that because the outcome of the case isn't at issue, Scalia or Thomas might decide to dissent just for the heck of it. I don't think that's typical.
revealing....
Did anyone specify posters to this thread, or other unamed liberals?
Here is a good example of what they were refering to.
That is revealing.
Thats why I gave a specific example. I don't think illustrating liberal viewpoints by citing obscure DU or Kos postings is legitimate, however un-repudiated statements by the Democratic Senate Majority (then Minority) leader should be suffice for one legitimate example. Unless you are contending Reid was espousing a racist veiwpoint instead of a liberal one.
I apologize for not getting back to you re: my statistical discrepancy. Commute + family time + tracking down that statstic (I had jotted it down in my notes from and had to backtrack where it came from). But sit down, I'm about to do something very rare on this board:
I was wrong. The statistic quoted was from a survery that only measured 'Constitutionally important' cases (see THIS SURVEY. I should have noted that when making the asssertion- I apologize. By excluding certain cases, two justices can be made to appear in concordance more often they are (example- get rid of CrimPro cases and Scalia and Thomas will apear more similar). I still find the methodology used interesting, but I should not have used that statistic without going back and checking the source of that statistic.
That said, I find the methodology used in the other cited survey persuasive. For the 8 years of Rehnquist 2, Scalia and Thomas were least likely to disagree of any justices. I would posit the following statements:
1. Scalia and Thomas practice similar jurisprudence, and we should expect to find some similarity.
2. That said, the uniformity of their decisions from the time Thomas was appointed until 2002 was striking... and if you take out the criminal cases, striking is an understatement.
3. The jurisprudence of Scalia and Thomas has been diverging recently (last five years), but, if you take out the solo dissents (products of a disdain for stare decisis) are still similar, but not to the extent of Thomas's early jurisprudence.
Are these fair statements?
That is revealing.
well, it doesn't seem particularly revealing if disavowed by the "liberals" on this thread. unless you want to argue we think what you say we think rather than what we actually think.
You seem to be unable to distinguish between (1) the fact that some liberals think that about Thomas and (2) that it is a "liberal" position in the sense that most liberals feel that way.
The significance of a lone dissenter is that it reveals the cutpoint of the case. I.e., the petitioner (for example) is pushing a very conservative legal position that even Scalia (say) won't buy as the law, but Thomas will. It reveals a division at the most conservative end of the spectrum. Which is not meaningless but not so highly significant unless the Court shifted vastly to the right, to the point where Scalia or Thomas might be the median justice.
First, the cases are not fungible.
Second, if you have a similar approach to the law and start with exactly the same cases as the guy sitting next to you on the bench, odds are you are going to come to a similar conclusion for similar reasons most of the time. It does't mean either of you is following the other.
First, the cases are not fungible.
Second, if you have a similar approach to the law and start with exactly the same cases as the guy sitting next to you on the bench, odds are you are going to come to a similar conclusion for similar reasons most of the time. It does't mean either of you is following the other.
Maybe those who cannot conceive of Thomas as inependent should instead consider that Scalia is Thomas's step-n-fetchit. With as much justification as the oposite view.
Reid was taking a cheap shot at someone who is disliked by liberals. I don't think Harry Reid is intellectually qualified, in all seriousness, to make an independent judgment about who is or isn't an embarassment to the Supreme Court, nor are most members of the Senate.
Are these fair statements?
1 and 3 are fair. I'd differ with 2, just because I don't find the numbers all that striking, in comparison to other pairs of Justices in recent history. I think it's been clear for quite a while that Thomas has his own jurisprudential path.
Steve, you're being defensive. People on this thread generally haven't said Thomas defers to Scalia, I specifically disowned that position.
The problem is, I guess, I'm not sure what position you're affirmatively arguing for. I understand that we agree on the basic point.
I believe the racial epithets you mention are of a piece with the negative stereotypes and subordinate-role allegations. Greenburg led off her article referring to other "vitriolic attacks." Aside from the Hill imbroglio, I wasn't aware of any.
Rick Garnett:
Thomas's colleagues may be able to say he is well-prepared at conference; I don't know what basis they would have for saying the same about argument, absent his venturing any questions. Anyway, being well-prepared is different from being open-minded. And I only said that his silence "hinted" at a problem, especially to those outside the Court who are relying on observation rather than personal experience. (I agree, that the overall questioning from the bench is above historical norms, an increase that can probably be traced to the appointment of avid questioners like O'Connor and Scalia -- and the fading into history of the strong, silent Whizzer-White types.) Still, asking virtually no questions, ever, is bound to strike some observers as odd, a contributing factor to Thomas's inaccurate negative reputation.
Hattio:
Although there is certainly room for some misinterpretation, the confirmation testimony of Hill and Thomas was so discrepant that this cannot explain it away. Either he harrassed her or she lied. Perhaps "vitriol" isn't the proper response, but such conduct is going to give rise to strong feelings (especially with a lifetime appointment to the highest court hanging in the balance). Anyway, I'm not looking to rehash that episode. I was just wondering if that was the other "vitriolic personal attack" Greenburg was referencing.
Since a number of people in the black community, "leaders" even, who do not post in here would never post in here and never even heard of here, believe Thomas is actually white, wouldn't that mean they should also believe Scalia is black?
I, much like Steve thought that:
<blockquote>
Reid was taking a cheap shot at someone who is disliked by liberals. </blockquote> Now I will admit Reid is not the sum total of all liberal thought encompassed in one man. But he is one of the leaders of the liberal party, and the elected leader of Senators Kennedy, Biden, Leahy and Clinton, to name just a few.
Justice Marshall didn't "act in lockstep with the liberal line." Justice Marshall SET the liberal line for those of us who were too cowardly to blaze the trail ourselves. He was the farthest thing from someone who "got in line."
It's worth noting at this point that every single racially offensive comment or stereotype in this thread has come from the conservative side.
I think if we had 9 Thomases, we would never have oral arguments except when the Court had original jurisdiction of a case.
Much is made of the "agreement rate" between Scalia and Thomas. What's the agreement rate between Marshall and Brennan? Not 100%, to be sure, but it's pretty high. No doubt Marshall was actually leading Brennan.
It's worth noting they are only repeating what has been said by some liberals, and repeating it in order to disagree with it.
Funny how you glossed that.
Yours, TDP, ml, msl, &pfpp
Yours, TDP, ml, msl, &pfpp
But that fruit's a bout a half millimeter above the first.
Yours, TDP, ml, msl, &pfpp
"repeating" and "characterizing" If I recall, with some ellipsis, Sen. Reid is quoted, and the "uppity" reference is certainly characterizing.
Talk about low hanging fruit.
Narrow and unrealistic, my foot.
Yours, TDP, ml, msl, &pfpp
"Repeating" and "characterizing" If I recall, with some ellipsis, Sen. Reid is quoted, and the "uppity" reference is certainly characterizing.
Talk about low hanging fruit.
Narrow and unrealistic, my foot.
Yours, TDP, ml, msl, &pfpp
Note that JC Greenburg was the Chicago Tribune S Ct correspondent for most likely the entire 15 years batista is complaining about. I can recall one specific piecew she wrote around 2000 or 2001 making this very point -- a court term preview. Probably available on lexis or the Trib's arvchive.
Anyway, I've never understood how one person from the "MSM" can be so interminably liberally biased, and then be deemed reliable only when that person supports a conservative position (a position I agree with, BTW. Jan was perhaps the best court correspondent in the country when she worked for the Trib and a U of C law school alum)
Could someone who thinks the "MSM" is responsible for pressing the (erroneous) notion that Thomas is Scalia's lackey (other than anything written during the Thomas confirmation or his first year or two on the bench), please provide a link or two in support?
What does "TDP, ml, msl, & pfpp" mean? Do you append that to your paper signature, too? Just curious.
I believe that the sense of Senator Reid's comments at least were recommunicated, and that quite faithfully. Other statements were recharacterisations.
Because in the case of that particular statement by Thomas, recommunicating the statement provides an accurate view of liberals--hence doing so characterises liberals.
That is my signature for interner use, where a sig takes little time. With ink I stick to my name.
TDP are my initials--go figger that one.
molon labe
montani semper liberi
para fides paternae patria
I don't speak Latin; would you mind translating? Also, I've noticed that if you insert two spaces after the ampersand, you can write "& pfpp" rather than "&pfpp."
So Brown v. Board of Eduction was a disaster? You want to go back to the Jim Crow world of Plessy -- or all the way to Dredd Scott? Since Brown was decided, there hasn't been a single Supreme Court Justice to decline to support it -- including Roberts and Alito at their confirmation hearings. Do you think Justice Thomas would disown it? (How about Loving v. Virginia?) Some irony, since without Brown, he would never be sitting on the Court. (Heck, without the chain of events Brown helped set in motion, he probable would even be able to vote.)
Brown was a disaster. It made no sense and provided no rememedy to the actual litigants; instead it blathered about some communist researchers' conclusion that blacks didn't want to hang around other blacks but preferred the company of whites, and it refused to order immediate intergration but suggested that intergration should happen some time in the future.
Brown was classic case of elites taking matters into their own hands, and shortchanging pesky electoral politics and popular opinion (it did this again in its infamous abortion opinion). As a direct, unintended result, white flight in this country took off like Courtney Love on Crack. Take a drive through Detroit and say "thanks, guys."
Brown and its progeny embodied the ultimate stupidity of "solving" forced segregation by imposing forced intergration. And guess what, the results speak for themselves. The only winners in all this were school bus manufacturers.
To digress, I fear the S. Ct. will give us a pro-treehugger decision soon by allowing EPA regulation of carbon. Why? Because all the "Brandeis Briefs" filed by 'friends of the court' went on and on about the "science" of manmade global warming. Legal issues will evaporate like common sense during a hot summer treehugger rally. And like all the whitey do-gooders in Brown v. Bd of Ed, the Supreme Court in Mass v. EPA will leave the law behind to advance todays latest "manbearpig" theory.
How were "electoral politics" supposed to solve the segregation problem when the victims of that segregation were prohibited by law from voting? Wait for "popular opinion," I guess. Jim Crow laws had been going strong for nearly a hundred years, with no end in sight, when Brown was decided. Tough luck, huh?
If you think a drive through Detroit today is bad, you should have tried a ride through Mississipi or Alabama or Georgia in the days before Brown. You'd have found some "strange fruit" hanging from the trees there.
Kenneth Clark was a "communist"? You really do want to take us back to the 1950s ... all the way to Joe McCarthy.
You anti-democratic, pro-race-mixing communist, you.
HappyLee:
I'm confused. Driving through Detroit (as I actually do with some frequency), I certainly do see continued segregation. But that's good from your perspective, right? And maybe that continuing segregation has something to do with a case that contains the name of Michigan's former governor Milliken. . . .
But you are certainly right that racial integration was an idea of "elites." Assuming by "elites" we mean "poor, working class, and sometimes middle class black people routinely and pervasively discriminated against in society who formed a movement to try to overcome discrimination."
I agree, and a similar argument to this is also one of the arguments that I found most astonishing when several libertarians got all in a tizzy about Ann Althouse's calling them out over the Civil Rights Act. They suggested, inter alia, that the CRA was unnecessary because economic and political incentives alone would have desegregated the South. And I think a reasonable person looks at that argument and scratches their head; if that were so, why had it not already been so? If the political process at the state level was sufficient to bring a halt to state and private segregation, Brown would have been moot and CRA unnecessary. Never directly addressed was when would this process have begun, why it would have suddenly taken place sua sponte almost a century after the civil war amendments, and how long would it have taken to achieve the same success as did the CRA. "It seems obvious to me that if your political theory doesn't provide for desegregation, you need a new theory."
Like many, you confuse the legal incidents of segregation with private discrimination. The CRA was about the latter, not the former. Libertarians say that if the federal government had limited itself to enforcing the 14th amendment and thus preventing governmental discrimination, the south would have desegregated.
I entirely understand both the libertarian position and the difference between governmental and private discrimination, I was just shooting for economy of language in pivoting from Brown to CRA. ;) I'm not convinced that simply removing government discrimination would have necessarily led to the collapse of private segregation - and, moreover, even if I were, that doesn't answer the questions of how long it would have taken and when it would have begun.
I'll acknowledge that there might be an argument (maybe even a good one) that CRA was not the best or the most efficient way to end private discrimination. However, the libertarian objection to CRA, it seems to me, isn't a practical, pragmatic beef with the efficiency of CRA, a concern with the details motivated by belief that it could have been more effectively written. I had thought that the purist libertarian objection to CRA, of the type that animated Althouse's antagonists, was hostility to the very idea of a federal statute forbidding private racial discrimination.
While I recognize that private discrimination and legal discrimination are separate issues, I also think those who argue against CRA understate the obvious: that the same people carrying out private discrimination were voting for the politicians who created and enforced legal discrimination. Frankly, I think the view that holds that "if the federal government had limited itself to enforcing the 14th amendment and thus preventing governmental discrimination, the south would have desegregated" would have at best doomed the south to far slower desegregation, and at worst, is utterly fanciful. If the South had wanted to desegregate, it could have done so on its own. It failed so to do, and in my view, Congress acted within both its Constitutional and moral authority to break the back of an iniquitous practice.
I take it, then, that you favor the Voting Rights Acts but not the laws prohibiting discrimination in places of public accommodation? What about minorities lacking the economic clout (because of either their small number or their poverty) to bring enough financial pressure to bear? Wouldn't economics require a "critical mass" to convince the owners of places of public accommodation to abandon their discriminatory ways? How about the businesses that have a special relationship with government -- say because they operate on public property or operate pursuant to one of a limited number of government-granted licenses -- would it be appropriate to rely solely on economics then?