Kenji Yoshino: Is the American justice system fair?
Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law at the NYU School of Law. Prior to moving to NYU, he was the inaugural Guido Calabresi Professor of Law and Deputy Dean of Intellectual Life at Yale Law School, where he taught from 1998 to 2008. He received his undergraduate degree from Harvard College, took a Rhodes Scholarship to Oxford University, and earned his law degree at Yale Law School. A specialist in constitutional law, antidiscrimination law, and law and literature, Yoshino has published in major academic journals such as the Columbia Law Review, the Stanford Law Review, and the Yale Law Journal. He has also written extensively in other popular venues, such as The Boston Globe, The Los Angeles Times, The New York Times, and The Washington Post. He has appeared on The O'Reilly Factor, Washington Journal, and The Tavis Smiley Show.
He is the author of Covering: The Hidden Assault on Our Civil Rights (2006) and A Thousand Times More Fair: What Shakespeare's Plays Teach Us About Justice (2011).
Kenji Yoshino: I think it really depends in what area of the law that youre talking about. I am a very cautious optimist in this regard, and I get ribbed all the time for being too optimistic by progressive colleagues of mine who really say this is just either corporations beating each other up; or you know corporations beating up the little guy; or the government beating up the little guy. I think that the reason that I’m such an optimist about this is the context on which I cut my teeth. Which is to say when I look at the gay rights context, I see a tiny minority in this country. So if we look at gays as a group . . . I mean estimates range . . . They range between four percent and 10 percent, right? So we have a population that is somewhere between the Asian American population and the African American population in this country. So its a very, very small minority of the country. It would be so easy for this country as many, many other countries have done to just say were not gonna have rights for these people. What, you know, gay people are doing is not something that the Constitution is gonna protect. Its not something that our civil rights laws are gonna protect. And in fact when the cases first start coming up before the Supreme Court, this is what our own United States Supreme Court says. So you know I was in high school when this case was decided. But in 1986 in Bowers v. Hardwick, a sodomy case comes up for the first time to the United States Supreme Court. The Supreme Court ruling 5:4 says that the sodomy statute is constitutional. And essentially what Justice White writing for the court says and here I;ll quote you know to say that these people have rights is ;at best facetious. So hes saying not only that these claims are without merit, but these claims are laughable. Theyre risible. He laughs us out of court, you know. And thats in 1986. So if you think about whats happened between 1986 and two decades later 21 years later in 2007 the landscape has shifted so dramatically that even within the lifespan of one individual we see a complete turnaround in the way that this powerless minority is regarded in the society. And I think that that is what ultimately makes me into such an optimist with respect to all other areas of the law. And so when cases like, you know, Hamdi or Hamdan come down . . . These were the two cases about the Guantanamo detainees. And the first one, if you cobble together a majority of the court – although they weren’t able to put together a clean majority on this – they said, you know, at least some form of due process has to apply to citizens who are being detained. And then the second case, they said that similar kind of due process rights had to be guaranteed for other detainees in Guantanamo Bay. I look at these cases and I think yes, this is familiar to me. Its the same country that gave me the gay rights cases, which I think other people are always kind of surprised that, you know, the Supreme Court is intervening on behalf of an individual; or on behalf of the little guy against an overweening government. So I . . . Im an optimist for this. Im generally, I think, by temperament an optimist. But here also I think that I have a history and a context that allows me to be more optimistic than many of my other peers. So if you look at people who have cut their teeth on the death penalty, or on immigration, or racial profiling, then I think that the picture is a lot more grim. And I understand why those individuals are much more . . . much less sanguine about where were gonna go in the future. But I was fortunate enough to be in a particular place in a particular time where there was a litigation explosion in an area that I care passionately about that went my way.
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