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Chapter 11

The Future of the Black and White Cookie

The Supreme Court of the United States was not exactly non complicit in this "Right Wing Revolution."  In fact, some might say that they played right into the Republican's hands.  The right had a list of Court decisions that they planned to have overturned.  Among those decisions were "Griswold v. Connecticut,"  "Roe v. Wade" and even "Marbury v. Madison." However, the top priority, and a landmark  decision in the history of jurisprudence of the United States, that they wanted to overturn was "Brown v. The Board of Education of Topeka, Kansas."

This was part of their long term goals, not even Trump believed that they could challenge Brown in 2016.  The challenge came from an unlikely source, "The Entemann's Black and White cookie" case.

The court upheld the constitutionality of the Black and White Cookie, under the doctrine of "separate but equal".  The controversial 5 to 4 decision, with the majority opinion written by Justice Clarence Thomas and the descent written by Justice Elena Kagan.

"Separate but equal" was doctrine in U.S. law until its repudiation in the 1954 Supreme Court decision Brown v. Board of Education.  

With is holding for the "Black and White Cookie,"  over the far more inclusive "Rainbow Cookie," the court did away with more than sixty years of civil rights.

Soon after the Malomar cookie, with the black surrounding the white was no longer sold by Nabisco im the United States.

Justice Thomas's decision paraphrased Justice Henry Billings Brown 1896, decision in Plessy vs. Ferguson, "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two flavors stamps either flavor with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because those who insist the flavors be integrated choose to put that construction upon it."

The descent, emphatically stated, that they will not opine as to the constitutionality of the cookie, but object on the basis of citing Plessy. Justice Kagan, first chastised Justice Thomas for ending a sentence in a preposition. "Just because Justice Billings ended a sentence in a preposition in a bad decision in 1896, Stare decisis does not dictate that you follow suit."

The case also marked the first time in many years that Justice Thomas asked a question during oral argument, when he asked Justice Scalia, "Where is the men's room?"

Justice Ruth Bader Ginburg, in a separate and extremely short descent wrote "Oy Vey iz Mir!!



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