Supreme Court on racial preferences, cont’d

by Walter Olson on April 24, 2014

A few more notes on the case already covered yesterday in tweet form:

Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.

To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).

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Schuette v. Coalition, in tweets - Overlawyered
04.25.14 at 3:45 pm
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1 DEM 04.24.14 at 10:15 am

Note also that Sotomayor goes on at some length about historical discrimination against certain minority groups. But hasn’t historical discrimination been abandoned in favor of “diversity” as the justification for affirmative action? Correct me if I am wrong, but going back to Bakke, remedying past discrimination was the “compelling interest” that allowed affirmative action to meet strict scrutiny. As the years wore on, and successive generations of minorities applied to college and grad school, that rationale became weaker. So the left latched onto diversity for its own sake as the new compelling interest served by AA. In light of all that, what is the legal significance of the past discrimination to which Sotomayor refers? And is she tacitly admitting that 30 or so years of AA haven’t accomplished much of anything?

2 Wfjag 04.24.14 at 10:23 am

Interpreting the Constitution to mean what the language clearly states — what a novel idea!

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