CHRISTINA SWARNS: If only.

ERROL MORRIS: If only. But this is an example of how it has never been fixed. And here is the $64,000 question. What are your feelings about Clarence Thomas’s decision in this case? Why did he decide as he did?

CHRISTINA SWARNS: I have no idea. He is inexplicable. I don’t really understand him. Putting aside the race politics here — and this is a big aside — we were right on the law. We were just four corners right on here. Put aside race, consider just the case. We met the law. I just don’t understand him. He is really offended by the facts of the crime, which is fair, and I get that, because the facts are terrible, but the law is the law —

ERROL MORRIS: I am interested in the kinds of casuistry that are involved in legal decisions in general, Supreme Court decisions specifically. I do believe the ends are always justifying the means. If you believe that somehow people should be executed, then you do whatever you need to do in order to make that happen. You think like Romney — we’ll just make it infallible — but that argument clearly misses the point.

CHRISTINA SWARNS: Right. It’s absurd. Just think about. I can’t predict what my kid is going to do tomorrow. It’s an insane ask, based on no credible science.

_____

And so we’re back where we started, except things have gotten worse. We have elected a president who invokes future dangerousness with respect to country of national origin (and also religion). In 1977 it was Dr. Grigson and sociopathy; in 1997, Dr. Quijano and race; and now it is Donald Trump and a list of six countries. Think of it as a very thinly disguised form of racism against Muslims.

Christina Swarns sent me several legal briefs submitted to the Supreme Court in support of Buck, among them, a brief from the National Black Law Students Association. “Whether by a judge, a prosecutor or defense counsel, an appeal to a jury based on racial prejudice poisons our system of justice.” And from the Lawyers’ Committee for Civil Rights Under Law: “Mr. Buck was entitled to have his dangerousness assessed on an individualized basis based on his personal attributes. Instead he received a death sentence tainted by 400 years of racial stereotyping.”

Notwithstanding, the concept of dangerousness is alive and well. It took an egregious error to call it into question in Duane Buck’s case. But it should have been ruled as unconstitutional by the Supreme Court in 1976 (under the Eighth and Fourteenth Amendments) and should be seen as unconstitutional today. Admittedly, there is a difference between a court of law and a presidential order involving immigration. But under any circumstance, should public policy be held hostage to racial and religious discrimination?