The Washington Post humors the super-silly liberal fantasy of impeaching Justice Scalia for discussing the affirmative action mismatch argument, an argument that 1) was briefed by lawyers in the case at hand, Fisher v. University of Texas; 2) has come up in the Court’s earlier racial preference jurisprudence and been endorsed by fellow Justice Clarence Thomas; 3) has been aired extensively in places like the Washington Post itself without the ceiling caving in. [Valerie Strauss, Washington Post “Answer Sheet”]
Of course the Washington Post itself would be a better newspaper if its writers on relevant beats took the time to read the paper’s own Volokh Conspiracy, which this week has been hosting a series of guest blog posts by Prof. Rick Sander, best known proponent of the mismatch theory.
Some have questioned whether Scalia was proceeding down a path irrelevant to the Court’s eventual ruling on constitutionality. Here is one possible source of relevance, per James Taranto’s discussion: “Kennedy, unlike Scalia and Thomas, endorsed [in an earlier university racial preference case] the premise that those benefits [specifically, educational benefits obtainable from greater diversity] constitute a “compelling interest” that would justify preferences if the other components of the strict-scrutiny test can be met.” Kennedy’s approach leaves open the possibility that this constitutional justification could be refuted by an empirical showing that the net benefits add up to less than a “compelling interest.”