So, there’s nothing particularly special or elevated or delightsome about the United States Supreme Court. Nor is there anything sacrosanct — or mandatory — or obviously preferable — about the present composition of the Nine Riders cloaked in black. For all I know, it might be better some other way than the way it is right now. As we’ve all heard a million times now, the U.S. Constitution doesn’t say anything in particular about that,^[1] and historically Congress has expanded, and has clipped, the nose-count of the court, on more than one occasion. The reasons for doing so pretty much every time were political, and indeed part of a fairly nakedly partisan power-grab, by temporarily triumphant Congressional factions or by long-frustrated Congressional majorities.^[2]

Now there are plenty of righteous reasons why political Progressives have gotten so furious and ended up feeling so utterly, desperately frustrated over the last few years. There are some stupid and invidious reasons too, but that’s hardly the point. Even if every Progressive political demand is legitimate, just and wise in its substance, — whether a faction is wrong-headed or right-on, under the circumstances or in general, — still, the fact is, in a partisan political order, it is almost always going to be pretty grubby, and short-sighted, and dangerous, and really very destructive, to govern as if your own faction or political party is just never going to lose another election, nor ever wish, on some future day, that you all had abided some hindrances to the government’s power to ride roughshod over opposition, or had some remnant left of conventional restraints on the momentarily triumphant faction’s naked wielding of political power.^[3][4]

1. ^[1]Even if the U.S. Constitution did say something about it, so what? If it should require something that’s a bad idea in general or under the circumstances, well then written constitutions can and should be amended, altered or abolished.↩
2. ^[2]See for example Timothy Huebner’s post at SCOTUSBlog.↩
3. ^[3]Suppose you just knew that you will be the Government more or less continuously, more or less forever, and never have to think about being in the opposition, or the resistance, in the future. Maybe you know deep down that you represent the Emerging Majority, and you can be certain that so long as every vote is counted, then tomorrow belongs to you. If you think that, then you might also think that conventional restraints on big exercises of political power will serve as little more than a hindrance to the achievement of your just and legitimate claims. Maybe you should get rid of them, and to hell with the Emerging Minority. I’d say there’s something deeply wrong, and really kind of sad, about that attitude. But in any case, if you really think that you know you will be the Government more or less continuously, more or less forever, — or that if you can once become the Government then you’ll be able to fundamentally change the structures so that you’ll be sure to be the Government forever after, — and never have to think about being in the opposition, or in the resistance, in the future, — then I’d say that is a pretty foolish and short-sighted belief. In the real world, extraordinary powers are not just a rifle that you can just aim at the opposition. They are like setting a fire, which doesn’t always go where you expect it to go, which runs backwards as well as forwards, and which easily burns on with a life of its own, beyond the direction or control of them what set it.↩
4. ^[4]For future reference: the phrase in the title of this post is an allusion to a Slate interview in October 2020, in which the journalist and political commentator Dahlia Lithwick suggested that the thorny issue of court packing wouldn’t be so thorny if proponents of partisan court packing would just call it something other than that, like systemic structural court reform or something similarly anodyne.↩

From The Best American Poetry: 2004, eds. Lyn Hejinian and David Lehman, pp. 73-74.

All Souls’

Starting up behind them,
all the voices of those they had named:
mink, gander, and marmoset,
crow and cockatiel.
Even the duck-billed platypus,
of late so quiet in its bed,
sent out a feeble cry signifying
grief and confusion, et cetera.

Of course the world had changed
for good. As it would from now on
every day, with every twitch and blink.
Now that change was de rigueur,
man would discover desire, then yearn
for what he would learn to call
distraction. This was the true loss.
And yet in that first

unchanging instant,
the two souls
standing outside the gates
(no more than a break in the hedge;
how had they missed it?) were not
thinking. Already the din was fading.
Before them, a silence
larger than all their ignorance

yawned, and this they walked into
until it was all they knew. In time
they hunkered down to business,
filling the world with sighs–
these anonymous, pompous creatures,
heads tilted as if straining
to make out the words to a song
played long ago, in a foreign land.

— Rita Dove (2004)
from The New Yorker

The California Department of Fair Employment & Housing filed an employment discrimination lawsuit against Cisco Systems earlier this year. The suit has attracted a lot of attention from journalists and social commentators because DFEH filed the lawsuit on behalf of an anonymous Indian engineer, who alleged that two managers, also of Indian had subjected him to discrimination and harassment based on his caste as a Dalit Indian.^[1] Some of the stories just focus mainly on providing some background on the long-term or more recent history of caste in India,^[2] while others focus more on exploring the social dynamics that emerge in the Indian emigrant diaspora when Indians from different caste backgrounds build lives or careers abroad — sometimes in environments like high-tech industries in California, where they may be surrounded by other immigrants from South Asian backgrounds.

Of the radio pieces I’ve been hearing lately, here’s one of the more interesting ones, How To Be An Anti-Casteist from NPR’s Rough Translation:

Shared Article from NPR.org

How To Be An Anti-Casteist : Rough Translation

How does India's caste system play out in the hiring practices of Silicon Valley? And what happens when dominant caste people in the U.S. grapple with…

Lauren Frayer @ npr.org

I’m also reading:

• Pia Krishnankutty, California state sues Cisco for caste-based discrimination against Indian-American employee, ThePrint.in (2020-07-01)
• Phillip Martin, Suraj’s Shadow: Wherever He Goes, His Caste Follows — Even In America, WGBH News (2019-02-25)
• Mauktik Kulkarni, First person: My caste privilege in India blinded me to the reality of racism in the US, Scroll.in (2020-06-04)

Notes & Ramblings on the Podcast:

Like a lot of the NPR coverage and commentary on this story, the main story in this piece is a story about trying to think about caste discrimination in terms drawn from a more or less American paradigm for how to think about social justice, oppression and privilege. The American paradigm depends on terms, theories and arguments that were mostly developed to talk about paradigmatic forms of race and color segregation, discrimination and prejudice within the U.S., or secondarily about prejudice and exclusion based on ethnicity, religion or nationality. So you figure that caste privilege within Indian communities is (more or less) like white privilege in the U.S. in some (more or less salient) ways, caste discrimination is (more or less) like racial discrimination in some (more or less salient) ways, white privilege at the expense of non-white people is bad and wrong and ought to be combatted in the name of social justice, and similarly caste privilege at the expense of oppressed or marginalized castes is bad and wrong and ought to be combatted for the same reasons.

The Rough Translation piece is interesting because it is a longer exploration than a lot of the radio journalism that I’ve been listening to lately about this, and because the piece is at least sometimes aware that it is feeling around the edges of something that’s really potentially pretty complicated. Not all that complicated in terms of the basic justice of the thing — invidious discrimination is bad and wrong, if the allegations against the managers at Cisco are true then they were doing something bad and wrong, Indian society is really big and heteregeneous and complex, and has within itself its own deeply rooted hierarchies of privilege, exclusion and oppression, the caste system has had pretty bad historical and ongoing effects, there’s no reason those effects would just stop or disappear at the Republic of India’s current political borders, there’s a lot of stuff going on here that’s not always obvious to non-Indian observers but people who are concerned about questions of social justice probably need to spend some time thinking and learning about all this.

On the other hand, it can get complicated in figuring out how to address those questions from within terms that draw so much on the paradigm of racism and the history of racial segregation in America. Caste privilege in India, or caste privilege among Indians in America, is kind of like white privilege, anti-black racial segregation, etc. in America. And it’s also kind of not like those things. Incorporating the terms and approaches of anti-racist movements in the U.S. sometimes helps bring issues to the forefront; sometimes it draws the discussion into weird places, weak arguments or difficult edge cases.

As discussed in the Rough Translation episode, Dalit activists themselves are divided over the value of involving American legal systems to settle an issue within Indian and Indian-American communities. It’s mainly mentioned in passing in the story, which is mainly about social activism not about the legal case, but California DFEH’s basic problem is that in legal terms, caste per se is not a protected class under state or federal antidiscrimination law. Maybe one of the existing protected classes can be hooked onto, or wrenched around until it sorta fits, a protection against caste hierarchy discrimination — California’s legal protection against discrimination on the basis of ancestry seems like the most directly, plausibly relevant, but that legal protection doesn’t exist in federal law.^[3]

Some features of caste discrimination look and act sort of like the familiar features of American racial discrimination or segregation. Other features look and act more like other forms of prejudice or exclusion — for example, the discussions in the show around expressing, hiding, detecting or outing people’s caste background seems to have considerably more in common with discussions around sexual orientation or religion than they do with most discussions around race or skin color. Other features may just be features peculiar to caste that don’t have obvious analogues with some other pre-existing American social-justice category. Critical understandings of the problem and vehicles for possible responses all get tangled up in, cut across and against, and have to be taken in the context of a lot of other social hierarchies and identities (for example from the legacy of European colonialism on the Indian subcontinent, or from the position of Indian-Americans as immigrants or as people of color in the U.S.A.).

They don’t get into this in the Rough Translation episode, but the rough and imperfect fit here between terms and categories isn’t just a problem of global encounters today — it’s a problem with a long and deep history. The English word caste and caste system themselves have a long and tangled history — the words don’t come from an Indian language, they come from the legal and cultural practices of Spanish and Portuguese overseas colonies. (Caste comes from casta, meaning breed or type, and caste system from sístema de castas, which was a legal and cultural hierarchy developed in Spanish and Portuguese New World colonies to classify and rank people in a mixed-race society based on their racial ancestry; then Portuguese colonizers used the terms that they developed for this emerging racial system in an attempt to describe the ancient systems of social hierarchies and social and occupational divisions that they found in India — in particular, the Hindu rankings of Varna and the social-tribal-occupational groupings of J?@c4;81;ti. In some ways this reflected the reality of hierarchy, power and social division within Indian societies; in some ways it fit only roughly, or actually misunderstood and distorted what was going on. The British East India Company and the British Raj got their terminology, and a lot of their information, from this colonial past and its very rough translations, and they wrote the terminology into colonial law and administrative practice. At the same time, people within the Indian subcontinent were also taking the terminology up on their own, and they evolved in their own attitudes and practices in ways that sometimes hardened divisions or strengthened distinctions, and sometimes converged with the colonial authorities’ re-interpretations of varna and j?@c4;81;ti as the caste system. Today, of course, caste and scheduled castes are legally encoded as basic features of the independent Indian state’s laws on equality and discrimination.) We have here a long, long history of interactions between European and American systems of race, and Indian systems of caste, that easily end up being like high-stakes conversations being conducted through round after round of interpreters, or through repeated passes through Google Translate. You can learn a lot by listening to a conversation like that — sometimes what you learn is something about the how some conversations can illuminate and enrich each other, and sometimes what you learn is just how much gets lost in a rough translation.

1. ^[1]The lawsuit is Department of Fair Employment and Housing v. Cisco Systems, Inc., et al., Case No. 5:20-cv-04374 (Northern District of California).↩
2. ^[2]The scare quotes are there because it’s complicated.↩
3. ^[3]Federal civil rights law expressly recognizes and punishes employment discrimination only on the basis of race, color, religion, sex, national origin, age, pregnancy, familial status, disability, military veteran status, or genetic information. The recent Bostock ruling in the Supreme Court adds sexual orientation and gender identity by recognizing them as subsets of the protection against sex discrimination. I suspect that DFEH hopes to use this case to push for a Bostock-like precedent that would bring protections against caste discrimination under the aegis of one or more of the existing protected classes — but if so, at the very best this seems like a real stretch for any of the existing protected categories. In some of the materials they’ve filed, DFEH even reportedly puts forward a claim that their protegé is darker-complexioned than non-Dalit Indians (those are an AP reporter’s words, not a quote from the filing), which seems like a really pretty desperate grab at connecting caste discrimination to the federal Civil Rights Act’s protections for color. In their press release on the case, DFEH describes him as suffering discrimination because of his religion, . . . national origin/ethnicity, and race/color, which is just a grab bag of maybe-kinda-relevant protected classes in the hopes that they might jointly or severally be bent around into a legal form for prosecuting caste discrimination under the existing legal categories. They also mention ancestry, which is much more obviously feasible, because caste distinctions are inherited by children from their parents; that’s a protected class under California state antidiscrimination laws, but not in federal antidiscrimination laws.↩