October 15, 2013

"The affirmative-action case liberals deserve to lose."

By Emily Bazelon, who is a liberal, at Slate, which is liberal (so this isn't some conservative fakely "helping" liberals see the light, in the style of articles like "Do Yourselves a Favor, Republican/Raise the debt limit high enough that we don't have to debate it again until after your primaries," a teaser on the front page of Slate right now).

I'm very interested to hear about this morning's argument in the case Bazelon is previewing, Schuette v. Coalition to Defend Affirmative Action. The argument against the Michigan constitution's ban on affirmative action in education is so abstruse that no article aimed at laypersons can explain it. Bazelon does a creditable job — at paragraphs 4-6 at the link — but I've repeatedly read (and taught) the strange cases that the argument is based on, and I've seen year after year of law students struggling just to see what the Court was saying in those cases, which must be further extended to reject the Michigan ban. If the Supreme Court embraces that argument, people won't understand why, and it will help conservatives in 2014 and 2016.

Which is why I read Bazelon's "liberals deserve to lose" as "liberals should want to lose."

33 comments:

Abdul Abulbul Amir said...

U betcha. If the Supremes rule that prohibiting racial discrimination is unconstitutional, then that will trigger quite the backlash. Worse, it will enshrine a never ending racial spoils system.

Unknown said...

I don't even understand your explanation of it.

Smilin' Jack said...

The argument against the Michigan constitution's ban on affirmative action in education is so abstruse that no article aimed at laypersons can explain it.

This is what democracy looks like!

boldface said...

Let me try to explain it.

The cases the Sixth Circuit relied on basically held that state voters can't use state initiatives to get around the requirements of the equal protection clause. They can't ban remedies and they can't impose burdens on minorities.

It should be obvious right there why the Sixth Circuit is wrong: the issue regarding AA has always been whether and to what degree the equal protection clause permits it. There is no basis for the argument that equal protection *requires* AA. But if equal protection doesn't require AA, then banning AA isn't an end run around equal protection.

Clear?

madAsHell said...

It’s about introducing a different set of standards for some applicants. A more equal society may be the broader long-term goal of affirmative action. But the way you get there is by treating people differently, based on race.

We've had affirmative action for over 45 years. How do we know when we arrive at a "more equal" society? Is it when Rachel Jeantel can read cursive?

Crunchy Frog said...

"The Constitution does not require that which it barely permits." - Adarand

Here is where I wish Kennedy had had the balls to outlaw AA altogether in Fisher instead of the wishy-washy opinion he left us with.

Ann Althouse said...

"The cases the Sixth Circuit relied on basically held that state voters can't use state initiatives to get around the requirements of the equal protection clause. They can't ban remedies and they can't impose burdens on minorities."

No, that's a terrible explanation. Sorry.

Ann Althouse said...

Affirmative action isn't required by the Equal Protection Clause. It's only permitted (and only when it is done the right way).

In this case the petitioners are saying that even though AA is only optional, people should have access to the process of seeking to have it adopted as a voluntary policy, and having a state constitutional law ban on the policy deprives them of a political option they once had.

Then you need another leap to say why that violates EP.

MadisonMan said...

Favorite sentence in Bazelon's article:

Michigan’s voters also messed around with the political process.

Darn those pesky voters!!

David said...

No bullshit tag. Such restraint.

Sigivald said...

I prefer Kennedy's Affirmative Action to the thing using the name now.

(Hr ordered Government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin".

Without regard. Not quotas. Not exceptions for disfavored groups.

Color blind.

Much like Rev. King's "dream", the actually liberal bit keeps getting covered up with racial preferences.)

Sigivald said...

(Which brings to mind, how is it that "equal protection under the law" can allow racial preferences, which is what "allowing Affirmative Action" [in the modern sense] does?

I'm sure there's an explanation, but I have serious doubts about it being one that isn't laughably bad*.

* In the same way Raich was laughably bad, when the Supreme Court told us the Commerce Clause grants Congress power to regulate not-selling things inside one state. Because markets.)

Bob Ellison said...

"By Emily Bazelon, who is a liberal..."

There you go, labeling.

fivewheels said...

I have to confess I often listen to the Slate Political Gabfest podcast, and Bazelon is the worst kind of empty-headed liberal -- the kind who childishly believes that anyone who disagrees with her can't simply be taking a different path to positive goals but that Republicans want to "wreck the country." The kind who wishes that a Republican SC justice would die so that Obama could replace him. The other two on the podcast, Plotz and Dickerson, are not conservatives either, far from it, but they're at least smart enough to understand the arguments.

And on affirmative action, given her last name, the last thing she wants is to remove the advantages conferred by accident of birth. How much do you suppose her career in legal writing has been smoothed by those who knew her famous dad?

Reading her is unfruitful.

Alex said...

I notice that the combination of closing comments and then moderating comments for half a year drove away the Ritmos and other agitators.

fivewheels said...

Whoops. Judge Bazelon is her grandfather, not father.

Michael said...

Read the report today regarding the failure/drop-out rate for the latest NYFD class which is made up of a large percentage of minorities who were previously denied admission to the program. Not a good outcome so far.

Lots of hard feelings on the part of those who cant cut it. Again.

cubanbob said...

The University of Michigan if I am not mistaken belongs to the State Of Michigan. So the convoluted logic is that the State can't make rules on admissions to its own Universities? So the petitioners are arguing not withstanding that affirmative action is permissible albeit not required that their desire trumps that of the electorate of Michigan which passed a state constitutional amendment that otherwise is conforming to the US Constitution? Ann if I am understanding this incorrectly please let me know. If I am getting this right, then why are the courts even reviewing this to begin with? It should have been shot down at the start.

SGT Ted said...

There is no rational argument against the law. That's why they are reduced to playing the race card.

Andy Freeman said...

> having a state constitutional law ban on the policy deprives them of a political option they once had.

A huge fraction of state constitution provisions deprive folks of political options that the would have otherwise had.

Except that said provisions don't actually do that. They merely make repealing the relevant provision the first part of a campaign to get said options.

Michelle Dulak Thomson said...

Alex,

I notice that the combination of closing comments and then moderating comments for half a year drove away the Ritmos and other agitators.

It was nothing like "half a year." Maybe six weeks.

And it didn't work entirely, because "Mary" showed up a couple of days back, and Ann and/or Meade evidently spent some time hosing down the joint.

Richard Dolan said...

Argument transcript now posted on the SCOTUS site.

The Mich Sol Gen was on top of the case, and appeared to be the only attorney prepared to answer the predictable questions. The two attorneys arguing for respondents seemed unfocused (especially the second one). At one point Justice Sotomayor had to rescue her from the unresponsive blather she was giving in response to questions from Alito and Kennedy.

As all of the commentators have said, it's not so much a question whether the Court will reverse, but how broadly they will do so. The Mich Sol Gen was giving them a way to reverse without also overruling two earlier cases (Hunter and Seattle), but noted that those cases have lost a lot of their force, as well as their raison d'etre, after Washington v. Davis.

This is a case that deserved a better argument from respondents. Too bad it didn't get one, even though I doubt it would have changed the likely result. I'm guessing 6-2, with only Ginsburg and Sotomayor dissenting.

Big Mike said...

@Sigivald, Camelot was a long time ago, and the country where it stood is nothing like the United States of today.

Titus said...

I am liberal on some stuff, fags marrying etc.

And conservative on some stuff, affirmative action, where I saw up close in college, and low taxes.

Where is my party?

BarrySanders20 said...

Holy shit. Titus and me.

Tits.

garage mahal said...

If any writer for Slate is referred to as a liberal, there must be some sort of disclaimer attached to it.

Pettifogger said...

As I understand the argument against Michigan's law it is this:

We all know--wink, wink, nudge, nudge--why those racist voters adopted this proposition. It was to oppress people of color. Because of the ill motive, we are entitled to strike down the action.

Does that not make the proposition stand or fall based on a subjective reading of the intentions of all those voting in favor of the proposition? And to strike down the proposition, you need to adopt the subjective reading of the fevered left? I suppose that makes it a close call in the Supreme Court.

Pettifogger said...

"If any writer for Slate is referred to as a liberal, there must be some sort of disclaimer attached to it."

And we're told Republicans have divisions.

El Pollo Raylan said...

Present

Crunchy Frog said...

"The affirmative-action case liberals deserve to lose."

Wouldn't that be all of them?

Carl Pham said...

I don't see why the words "affirmative-action" are needed in that headline.

Real American said...

here's the case in a nutshell: leftists lost an election, which shouldn't be allowed.

IParrot Post said...

iParrot Post is a global read and reporting news platform that enable users to post their account of events witnessed, worthy local and International news. iParrot Post is a breaking news portal.iParrot Post exists to provide independent news and information to the masses, comprised of news feeds from around the world. We enable our users and subscribers to submit local News that they see as important. It is also a portal to allow users and subscribers to comment and contribute to the News events of the day.
Worldwide News UK
English UK News
Local UK News
UK Political News
English British Sports News
Business UK News
Breaking UK News
Technology UK News