The Dred Scott Supreme Court decision has come to haunt the judges who ruled on it in 1857. The Mass. ACLU's Carol Rose says justices want to avoid a similar mistake in their same-sex marriage ruling.

Credit: "Dred Scott photograph (circa 1857)" by Uncredited - http://www.picturehistory.com/product/id/612#. Licensed under Public Domain via Wikimedia Commons / Wikimedia Commons

ACLU's Carol Rose On Same-Sex Marriage: Justices Don't Want To Go Down Writing 'Dred Scott'

June 25, 2015

Carol Rose, executive director of the Massachusetts ACLU, joined Jim and Margery on Boston Public Radio to talk about recent Supreme Court decisions, investigations into the deaths of people in law enforcement custody, solitary confinement in US prisons, and more.

On Thursday the Supreme Court ruled on two long-awaited cases: a housing-bias case in Texas, and a challenge to the Affordable Care Act. A ruling on same-sex marriage could come Friday or Monday. What do you predict for that?

I'm really hopeful that we'll have a victory. [...] I think these justices don't want to go down writing the Dred Scott [decision].

So you think the justices are worried about how history will judge them?

I think the court was actually hoping it would take it a little longer, but the political tide in this country has been [quick]. Massachusetts really led the way for the whole country.

The Supreme Court also ruled against putting the Confederate flag on Texas license plates. You at the ACLU were pushing to consider it free speech, and therefore allowable.

What this comes down to is whether it's 'government speech' or not. [...] The ACLU says in South Carolina you've got to bring it down, it's political speech. [...] What we argued in the Texas plate [is that] the state isn't endorsing that [image. The court ruled that] it's government speech, so it should come down.

We had Attorney General Maura Healey on the show this week, and we asked her about the ongoing investigation into the 2011 triple homicide in Waltham. In addition to Tamerlan Tsarnaev and Ibragim Todashev — both deceased, both considered suspects by the FBI — Healey intimated there may be at least one other suspect in the case. What do you make of that? Will you press her to investigate further?

Our argument is that the jurisdiction for the Attorney General to investigate goes where the [state's] police officers go. [...] We have talked to Maura Healey about doing independent investigations whenever there are police-involved shootings [like Todashev's].

Were you surprised to hear there may be at least one more suspect?

This whole story just gets curiouser and curiouser. We have so many questions. They knew Tamerlan Tsarnaev. [...] Why hadn't [the FBI] linked him to this murder, and then suddenly within 48 hours after the Marathon bombing [they did]? [...] Now, out of the blue there's a new mystery person? This whole thing just raises a lot of questions and concerns. [...] When you don't have transparency and you don't have clarity from the government, [people] make up things that may be far worse.

So the Mass. ACLU supports an independent investigation into the death of Ibragim Todashev?

You want to make sure you have an independent investigation, and I think it would be great to see the investigation going on in the Todashev [case].

We've talked quite a bit about solitary confinement in US prisons, and the very thin line between strict versus cruel and unusual punishment.

[Prison can be] more punitive than restorative. We want to just punish the bad guys all the time. But the problem is when people are in solitary, [...] it makes people go mad. [...] A lot of people have tried to bring that Eighth Amendment 'cruel and unusual' [argument]. We need to challenge those as a constitutional matter. [...] It's a public safety issue that we should be working on.

In all 73 cases where Mass. police have used deadly force over the past 12 years, investigators found law enforcement's use of force was justified. Do we need independent investigators for these cases, rather than district attorneys?

The danger isn't just that maybe the district attorneys won't investigate themselves, or investigate the police because they're cozy. [...] The real danger is, when they do find that the police did something wrong, [...] you get these shut-downs [by police]. Wisconsin just passed a law about this, so that might be a model that we could look to. [...] Why can't Massachusetts be on the cutting edge of doing something right?

>>Carol Rose's responses are edited where noted [...], and questions are paraphrased.


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