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Flashback: The Supreme Court Turns Back the Parade of Horribles

Cases like Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (2014) show how important it is appoint good judges to the federal courts.

Today is the fourth anniversary of the Supreme Court's decision in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (2014). My mind still reels at the notion that it took the Supreme Court's intervention to get the right result here. If anything illustrates the importance of getting good judges nominated and confirmed to the federal bench, this case does.

The case involved the constitutionality of the Michigan Civil Rights Initiative ("MCRI")—a voter initiative passed in 2006 by a margin of 58% to 42%. Its core provision prohibits the state from "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination. For exactly that reason, the Sixth Circuit, sitting en banc, had found it unconstitutional in an 8-7 vote that broke down precisely on party lines. (The one Bush appointee who voted against MCRI's constitutionality was initially a Clinton appointment and cousin-in-law to Senator Carl Levin (D-Mich)).

MCRI had passed in the wake of Grutter v. Bollinger, which had held in a 5-4 decision that the Constitution does not forbid the University of Michigan Law School from granting under-represented minorities large admissions preferences over whites and Asians. Michigan voters decided that if the Constitution did not forbid race-preferential admissions, they would. There is nothing remarkable about that. The fact that the Constitution does not forbid something does not mean it is required. Perhaps that should be especially so in the case where four Supreme Court Justices took the position that the Constitution did indeed forbid what UM Law School was doing.

The named plaintiff-respondent in the case was the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (self-described as "BAMN")—an organization whose very name bespeaks its extremism. BAMN is a Detroit-based offshoot of the Revolutionary Workers League, and is, to put it as blandly as possible, controversial.

Just one among dozens of examples of its willingness to use "any means necessary" was its attempt to intimidate the Michigan Board of Canvassers into refusing to certify MCRI for the ballot. BAMN brought in busloads of protesters who shouted down officials, jumped on chairs, and stomped their feet, flipping over a table in the process. As the director of elections put it, "Never before have I seen such absolutely incredible and unprofessional behavior from lawyers urging this disruption."

BAMN's pre-election tactics failed. Board members voters to certify the initiative for the ballot as the law required them to do. The following November, the voters approved it. BAMN and many others then filed suit.

The core of their legal argument (which had already been rejected by the 9th Circuit and the California Supreme Court) was this: By adopting a policy against race discrimination in the state constitution, Michigan is discriminating against racial minorities who might wish to lobby for preferential treatment. Other interest groups—veterans, public employees, etc.—can lobby for special treatment without restraint. But a racial group can do so effectively only if it first successfully lobbies to repeal the state constitutional provision. Such a "political restructuring" is unconstitutional—or so BAMN's argument ran.

But as I wrote back before the Supreme Court's Schuette decision in The Parade of Horribles Lives, MCRI doesn't discriminate against racial minorities. It discriminates against race discrimination—the way the strict scrutiny doctrine discriminates against race discrimination. Members of racial minorities are as free as anyone to lobby for preferential treatment. They just can't lobby for it on the basis of their race, sex, etc. Nor can they be disadvantaged on those bases. MCRI is a two-way street.

Moreover, all laws work a political re-structuring. Consider the Equal Credit Opportunity Act of 1974. Under its provisions, it is illegal to discriminate by race in the provision of credit. When Congress passed that law, it effectively pre-empted the Michigan Legislature from passing legislation that might require banks to give minority members credit at preferential rates. But if that makes it unconstitutional, I'll eat my hat.

The best case BAMN could cite for its position was Washington v. Seattle School District No. 1 (1982), a 5-4 decision that was a logical mess. I'll spare you a long description. Suffice it to say that the one thing all nine Justices in Washington agreed on was that the argument being made by BAMN years later would been absurd. Justice Lewis Powell's dissent in Washington had expressed fear that the majority opinion's logic could indeed lead to that result: "[I]f the admissions committee of a state law school developed an affirmative-action plan that came under fire, the Court apparently would find it unconstitutional for any higher authority to intervene .…" But the majority vehemently denied Powell's assertion and made it clear that their intent was not to cover laws like MCRI: "The statements evidence a basic misunderstanding of our decision …. It is evident … that the horribles paraded by the dissent … are entirely unrelated to this case."

Ultimately, MCRI was upheld by the Supreme Court, thus heading off the "parade of horribles," but with Ginsburg and Sotomayor dissenting. But the Sixth Circuit decision (as well as the Supreme Court dissents) are a reminder not to take anything for granted.

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  • Eidde||

    "It's not surprising that a white, male blog would harbor delusions of persecution at the hands of racial-justice activists, while all the goober colleges impose loyalty oaths, deny science, and...where was I? Oh, right, backwards goobers and inbred hicks getting left behind while we observe the march of progress of our glorious liberal/libertarian heritage of tolerance..."

    /The Rev

  • FlameCCT||

    Not bad although you forgot "Carry On Clingers"

  • Sarcastr0||

    OK, I'll admit this did make me grin.

  • Rev. Arthur L. Kirkland||

    You want to smile? I'm thinking of bringing back Artie Ray Lee Wayne Jim-Bob Kirkland (until a conservative champion of free expression censors ol' Artie Ray again for the crime of being hilarious at the expense of right-wingers' feelings, at least).

  • Eidde||

    A parade of horribles certainly seems more fun than the Macy's Day Parade.

  • croaker||

    Or possibly the Gross National Parade that used to be held in DC.

  • Joe_JP||

    Hope the parade has Chucky and Tiffany ... love her.

  • ReaderY||

    I think that there's a good argument that Washington, and Roemer v. Evans, were wrongly decided. But given their existence as precedents, BAMN's argument was by no means frivolous. The Supreme Court could have, if it wanted to, expand the precedents to cover their situation. And if it did, it wouldn't be the first time the Supreme Court issued a decision solemnly promising not to apply it to situation X, then some time later covers situation X and cites the decision as precedent.

    Obviously, if you don't want the state of the law to go that way, you try to appoint judges disinclined to extend it. But I don't think that makes BAMN's legal argument frivolous or rediculous. It's a very rational argument to make. And it persuaded the 6th Circuit.

    Indeed, cases like Washington and Roemer now seem anomalous. It seems that state government can in fact overrule local decisions and make decisions at the state level, except when it leads to outcomes the Supreme Court really, really doesn't like. But who can predict which these will be? BAMN was perfectly entitled to argue that its special interests ought to be on the list.

  • Eidde||

    They certainly were not frivolous as far as precedents were concerned - they had precedents they courts could have invoked on their behalf if so inclined.

    Now, what if the precedents themselves are frivolous? The rules don't allow for that possibility, since it's court decisions which decide the boundaries of legitimate debate.

  • Rigelsen||

    Fortunately, we are as capable of reason as the judges and justices who have spoken on the matter and can make our own judgements. And reason would suggest that it inherently ridiculous to contend that anti-discrimination requires discrimination, whatever the level of governments involved.

    Now, could such an argument, however ridiculous, be indeed non-frivolous? Sure, but only because appeals to authority and precedence are non-frivolous in a judicial context, however ridiculous they may be in a rational one.

  • PoxOnBothYourHouses||

    Rigelsen: "And reason would suggest that it inherently ridiculous to contend that anti-discrimination requires discrimination, whatever the level of governments involved."

    It is no more ridiculous than the cases where affirmative action laws that forbade discrimination were interpreted as requiring discrimination. Or -- it is exactly as ridiculous and exactly as onerous.

  • DjDiverDan||

    Justice Sotomayor's dissent in Schuette v. Coalition to Defend Affirmative Action, Reverse Discrimination, and Exacting Revenge on Evil White Devils (or something along those lines -I forget the full name of the organization which seems dedicated to proving that Blacks, too, can create a Klan) will remain for a long time at or near the top of the list for stupidest opinion ever to issue from the Supreme Court.

  • BillyG||

    I find it interesting she thinks overtly racist policies are acceptable, as long as they're in the direction she likes. It's as if the 14th amendment doesn't exist for her. Then again, I wonder how she would react if everyone started self identifying themselves as a racial/ethnic minority on admissions documents.

  • ||

    That's not interesting at all; it's the liberal non-white way. It's not a double standard but a single standard. Whatever is good for whites is bad, and whatever is good for non-whites is good.

  • Sarcastr0||

    You act as though the Supreme Court hasn't recognized affirmative action as okay.

    You do understand that there is some social asymmetry between whites and minorities such that a policy in one direction is not the same as a policy in the other.

  • Brett Bellmore||

    No, we act as though we knew it, and found it offensive.

    "You do understand that there is some social asymmetry between whites and minorities such that a policy in one direction is not the same as a policy in the other."

    You might, in an enlightened society, persuade the majority (Or plurality) that minorities should have the same rights as the majority.

    Persuading them that minorities should have superior rights compared to the majority is a non-starter, that delegitimizes the whole enterprise. If you persuade the majority that some group is going to get special treatment, they'll claim it for themselves every time.

    The civil rights movement went fundamentally wrong, early on; They found that equal rights didn't automatically, instantly, catapult you to equal achievement and status. And they decided they needed a shortcut.

    And then the Democratic party, which was already used to using racial spoils to buy voters' loyalty, got into the act. And easily outbid people who were "just" offering equal rights, with the achievement up to you.

    So, here we are today, with explicit racial discrimination championed by the "civil rights" movement, in the name of equality under the law. What a bitter joke.

  • Sarcastr0||

    There is a pretty good argument that the 14th exists to address the exact 'need to persuade an enlightened majority' tyranny of the majority problem you are talking about.

    Superior rights is an interesting framing, but I think in error. Does equal protection apply extra hard when we're talking about rights not just policies?
    There's no right to college admissions.
    =================
    Anyhow, there are a number of arguments as to why colorblind policies are not colorblind in effect.
    Between a structure that favors those already powerful (Both informally and as part of the meritocracy) recent past discrimination, current unconscious bias, etc. there's some good non-reparations reasoning that leads towards some marginal benefits being given racially. I think they all apply more strongly, class-wise however.
    ==================
    IMO there's a lot of untapped talent residing in people that are currently overlooked for STEM schooling and technical jobs. Whether affirmative action is the best way to address that I dunno, but I don't know of a better way at the moment.

  • BillyG||

    IMO there's a lot of untapped talent residing in people that are currently overlooked for STEM schooling and technical jobs. Whether affirmative action is the best way to address that I dunno, but I don't know of a better way at the moment.
    Given I work in the STEM field, and we try to recruit any good tallent we can, you don't need AA. I think you'll find a better correlation with income than race when it comes to the problem you're trying to solve. Target it differently, get better targeted results, and you won't have the issue of racial discrimination.

  • Brett Bellmore||

    No, but they'll probably still have "disparate impact", which the civil rights community is at this point committed to pretending is proof of discrimination, because actually proving discrimination is hard, compared to just demonstrating that you haven't met a quota.

  • Sarcastr0||

    My point is less after schooling, it's more before. It's more about talent than skill.

    I concur about income versus race, though from my experience in physics academia targeting women may be a great idea - even if they are statistically less able (very much not proven) their underrepresentation goes way beyond whatever that effect might be.

  • Rev. Arthur L. Kirkland||

    Given I work in the STEM field, and we try to recruit any good tallent we can

    Let's leave the E Street Band's bass guitarist out of this.

  • Sarcastr0||

    Also, as is becoming usual, I just want to footstomp where I saw blurring of 'is' and 'ought.'

    [Sotomayor] thinks overtly racist policies are acceptable, as long as they're in the direction she likes. It's as if the 14th amendment doesn't exist for her.

    Except she has the precedents on her side.

  • BillyG||

    Just let me know what conditions must be met for racial preferences to no longer be considered acceptable.

  • Stephen Lathrop||

    Neither you nor I must be able on sight to sort according to family wealth the infants swaddled in their cribs in the post-delivery suite of a big city hospital.

    I'm keenly aware, however, that a test of that sort would not stanch the demands of many identity politics practitioners. The nation is in a pickle on identity politics, and both major political parties suffer from it, each in their own way. But, BillyG, it is going to take more than demanding the pickle disappear to make a useful contribution.

  • Sarcastr0||

    Just be clear you're angry at her for following current law you don't like, not because she's ignorant.

  • Rev. Arthur L. Kirkland||

    In general, even more bigots need to die off, so that they might be replaced by better people in our electorate.

  • Rev. Arthur L. Kirkland||

    Persuading them that minorities should have superior rights compared to the majority is a non-starter,

    That would be the end of special privilege for religion-based claims, were conservatives to exhibit consistency and principles.

    Carry on, clingers. Fight for persecuted whites, males, Christians, and hetersexuals in America! Gail Non-Republican Heriot will be valiantly fighting alongside you every step of the way back to the 1950s.

  • BillyG||

    Let me know when those religion based claims are calling for money only for themselves or to force someone else to do something for them.

    Carry on Tyrant. Keep up the fight for racist democrat policies as you've been doing for the past 190 years. And remember such fine members of your party as George Wallace,

  • Rev. Arthur L. Kirkland||

    George Wallace was a stain on the American society and on the Democratic Party during the 1960s and '70s. Today, because the southern bigots migrated to the welcoming arms of the Republican Party, they are a stain on modern conservatism.

    Thank you for providing an opportunity to direct attention to the shameful conduct of Republicans and conservatives in this context.

  • Stephen Lathrop||

    Brett, I suggest you have stated the distilled case against affirmative action—by which I means the case reduced to reason, and stripped of facts—about as well as it can be done. But that argument can't carry the day, because you left out the facts.

    By the way, I say that as someone pretty strongly opposed to most instances of identity politics.

  • Brett Bellmore||

    Not stripped of facts, but rather, stripped of a particular reaction to them.

    That reaction being, that the outcome was more important than the principle that had suggested the outcome was important: That equal results, ASAP, was more important than actual equality of rights.

  • Perseus`||

    "You do understand that there is some social asymmetry between whites and minorities such that a policy in one direction is not the same as a policy in the other."

    Screw the Asians coming and going! That's asymmetry all right.

  • Sarcastr0||

    Color me skeptical of your crocodile tears in behalf of Asians.

    Asians have their issues as a minority; school admissions is not one of them. Citation as a model minority is one of them though.

  • Brett Bellmore||

    School admissions actually IS an issue Asians have: They are under-represented in many schools relative to their percentage of qualified applicants.

    It's just that they're a disproportionate enough fraction of qualified applicants that, even with the bias they face, they're a bit over-represented relative to the general population.

    Mostly triumphing over bias isn't the same as not being subject to it; There are a lot of Asian-Americans who get rejected for admission to schools they'd easily qualify for if their ethnicity weren't known.

  • Lee Moore||

    "Justice Sotomayor's dissent .....remain for a long time at or near the top of the list for stupidest opinion ever to issue from the Supreme Court."

    How do you know ? Has she retired ?

  • Brett Bellmore||

    "BAMN is a Detroit-based offshoot of the Revolutionary Workers League, and is, to put it as blandly as possible, controversial."

    Speaking as somebody who lived in Michigan at the time, and voted for the MCRI: BAMN is a criminal conspiracy, and they don't even pretend otherwise. When they say, "by any means necessary", they mean, even criminal means.

    I'm not sure I'd even characterize the restraint that's saved them from RICO as "admirable" restraint.

  • ||

    I remember they showed up to protest a FedSoc event I was at, and then proceeded to eat our food. These people are savages.

  • Sarcastr0||

    Did you guys plan that? Because these two posts are some of the best comedy I've seen on this blog in a long time.

  • Brett Bellmore||

    Seriously, do you have any acquaintance with BAMN at all? They're a bunch of thugs, they glory in it.

    Their bragging point is that they'll stop at nothing to win.

    That's what "By Any Means Necessary" means, Sarcastro: Nothing is off the table, if it will help them win.

  • Sarcastr0||

    None. I have no idea how violent they are. Certainly bragging and doing are pretty different on the fringe.

    But that's neither here nor there in the face of the amazing exchange above.

    'They're terrorists!'
    'I know, they took Federalist Soc food once...savages!'

  • Brett Bellmore||

    He meant they stole it.

  • Sarcastr0||

    I know enough about lunches at FedSoc events to know the food is not exactly closely guarded.

    That being said, I allow it is poor form.

    But not quite RICO-worthy.

  • nonzenze||

    Surely even stealing the food from an event is on a different order of magnitude than the term 'criminal conspiracy'.

  • Brett Bellmore||

    Not if two or more people act in concert to do it...

    But, again, seriously, they ARE a criminal conspiracy, and rather like the Antifa, scarcely bother to pretend otherwise.

    They're not By Any Legal Means Necessary.

  • apedad||

    As a white, American, male, New England-WASPish raised, polyglot with graduate degrees, I personally have no problems--educationally, career-wise, or financially--because of affirmative action.

    I can see why uneducated white trash may feel threatened though...

  • Eidde||

    I probably benefited, as a white person, from affirmative action - as a protected "minority" at a traditionally black institution.

    But it was still wrong.

  • Eidde||

    I should add that I've never been brutalized by cops, either, which by your logic means I shouldn't "feel threatened" by it and should not oppose it.

  • Rossami||

    Way to stay to the moral high ground, apedad. Good to see you addressing the substantive moral and philosophical implications of institutionalized discrimination.

  • Rev. Arthur L. Kirkland||

    Institutionalized discrimination? Is that a fancy way to describe the Republican Party's race-targeting voter suppression programs?

  • BillyG||

    You mean like how the Democrats hate the military? Or gerrymander some ridiculous districts?

    Carry on, Tyrant.

  • Sarcastr0||

    Hey, look over there, not over here!
    Dems do some dodgy stuff with voters . They should stop. Or be forced to by a more muscular and nonpartisan FEC.

    The GOP is currently doing some very dodgy stuff as well. Arguably dodgier. Do you think they should stop, or do you think the defeating liberals justifies the means?

    And quit it with your 'hate the military' BS. That kind of bloviating just undercuts your case.

  • apedad||

    Just to be clear, are you talking about the institutionalized discrimination against blacks, gays, women, etc., which includes less pay, violence, closed doors, and poorer opportunities which continues to this day or a (relatively) tiny amount of cases where some white kid has to go to College B instead of College A?

  • Rossami||

    None of those are established policies of institutions any longer - hence, by definition they are not "institutionalized discrimination".

    More to the point, for quite a few decades now the lower pay, closed doors and poorer opportunities are far better correlated with class than with race. If you really cared about those issues, you would address them directly, not through some inadequate proxy measure.

  • Brett Bellmore||

    I'm rather concerned about it, although I'm white, because while AA pretty much washes out for whites, it's really hard on Asian Americans, and I married an Asian.

    So my son is going to be rather disadvantaged in college admissions unless something changes.

  • Eidde||

    Just hold on until 2025.

  • Sarcastr0||

    As I understand it, the effective difference is pretty marginal in most institutions.

  • Brett Bellmore||

    "It's true your son will be formally discriminated against, but not too badly unless he tries to get into a good school." relieved the concerns of no father anywhere.

  • Sarcastr0||

    Sure, but 'rather disadvantaged' is not factually true, even if you feel that it is.

  • Sarcastr0||

    That seemed a bit cold.

    Upshot is this: college admissions sucks in many and multifarious ways. Affirmative action is an easy target, but hardly one of the main offenders.

    While I do think there's a place for racially targeted programs, in this case I'd like to see it changed to being class based. But it's not in my top 20 of burning issues in our society.

  • Eidde||

    Why isn't it? It would disarm the right-wing racist demagogues like Ward Connerly by taking away their pet issue and allow leftists to make a more plausible appeal to to the "white trash" than "we won't discriminate against you *too* much."

  • Sarcastr0||

    First, I don't think Connerly is much of a problem, though it's been years since I lived in CA.
    Second, even if he were, appeasing right-wing resentmentmongers doesn't actually work; they'll quite quickly find some other anti-white male injustice to yell about.

  • Eidde||

    I'm not a political expert, but in appealing to alienated whites - and the Democrats are For the Poor, regardless of race, aren't they? - there are better approaches than saying "why don't you dumb hicks vote for us, we don't discriminate against you all that much"?

  • Eidde||

    The #sad thing about Trump, from the Democratic point of view, is that he showed that so far the only way for a populist Democrat to win the white vote is to run as a Republican.

  • Absaroka||

    "...in this case I'd like to see it changed to being class based."

    Why wait? Not only will that, at a stroke, remove the objections[1], but it will solve two looming problems. For one, the demographers say that whites will be a minority in another 30 years or so. What's the plan for favoring minorities at that point? Secondly, the demographers are also saying that the young'uns are intermarrying at a great rate. It's going to get to be computationally difficult to track how much preference a 1/4 Asian, 1/4 Hispanic, 1/4 European, 1/4 Black person should get. And that's aside from deciding how to weight being a Hmong refugee vs. the kids of a Chinese billionaire.

  • Absaroka||

    [1] I'm old enough to remember when affirmative action started, around 1970 or so. At the considerable risk, perhaps, of 'no one I know voted for Nixon', it wasn't really controversial. There was a general understanding, I think, that merely stopping discrimination going forward wasn't fair to a 40 year old who had always known better than to apply for that supervisor opening, because those jobs were reserved for whites, and getting a reputation as uppity wasn't healthy. The consensus was that AA was a big, crude, hammer, but that Jim Crow was so bad that the downsides of making precision adjustments with a hammer were justified. But that was 50ish years ago, and the correlation between 'Black' and 'had been severely dumped on' was 99.9999999999%. It's harder to see today how much advantage we ought to give to Obama's daughters relative to some honky coal miner's kid. IMHE people supported AA in 1970, and wonder about it today, for the same reason - a desire for basic societal fairness.

  • Sarcastr0||

    I know some very successful blacks that still get pulled over all the time, have trouble getting a cab, etc. Minor stuff that signals larger stuff still resides below the surface.

    I agree with you that when it comes to admissions, these problems are swamped by the problems of poverty. But I certainly don't think they've been solved.

    Whether that's an argument that racial AA failed or we need more of it I leave to people more tiresome than I.

  • Eidde||

    I'm not sure how racial preferences at universities would help black people who are subject to police harassment, or ignored by cab-drivers.

    "The cabbies discriminated against me and the cops hassled me, but at least if I bid on a public contract I'd get the benefit of a racial preference, so it all evens out!"

    No it doesn't, unless of course we see in terms of groups, so that an injustice committed by a white person against a black person can be paid off by an injustice to an uninvolved white person, or vice versa.

  • Eidde||

    Plus, how does one define class-based affirmative action?

    If it simply means outreach to people beyond the country clubs, that would be great.

    If it means giving points to people (of any race) for growing up poor, when it comes to college admissions or public contracts, I'm not so sure that's a great idea.

    If Thurston Howell and Associates happens to be the best and cheapest contractor, then generally speaking they should get the contract, even if the competitor is a slightly less qualified scrappy company whose founder grew up dirt poor.

  • Negi||

    Andrew Gelman did some statistics and found that SAT tutoring raises scores no more than an equivalent amount of time studying. He had some simple recommendations to make the test fairer (average scores of all attempts, deduct points for students who receive extra time, etc). If we do that, I see no reason why we shouldn't be like most other civilized countries in the world where admissions are based wholly on an entrance exam like the SAT.

  • Sarcastr0||

    Switching to contracting from education is a bit of a dodge; talent and potential are more important indicia in education than in job execution.

    And that is what class-based affirmative action would hope to acknowledge; that someone with SAT scores/grades that had to hold down a job in high school is likely a lot more talented than someone who got to take a course and spend their evenings studying.

  • PoxOnBothYourHouses||

    And that's where the irony comes in. The SAT's were developed as a way of identifying talent specifically among those who were deprived and thus unable to get into the great schools, based on the idea that there was a lot of untapped talent out there. (Which they found out there truly was)

    Today it's part of a system that can be gamed, like any other system.

  • Sarcastr0||

    Discrimination comes due to power dynamics.

    Access to education, and the doors it opens, gets minorities into positions that will help to change that power dynamic.

  • Brett Bellmore||

    Pure meritocracy would give them access to education. The catch comes when mere access doesn't accomplish what ideology says it should, and outcomes get dictated, instead.

  • Sarcastr0||

    We have no idea whether it improves things or not, not having access to the counterfactual.

  • Stephen Lathrop||

    Brett, pure meritocracy is (under present conditions) incompatible with democracy. The problem with meritocracy is that it requires that the (less-meritorious) majority, agree to be led and disciplined by the (more meritorious) minority. But it's worse than that, really, because it also requires that the majority accept inwardly and with equanimity that they are less-meritorious. Democracy teaches that nobody needs to abide such unpalatable self-assessments, and that massed action can overturn any regime reliant on that acceptance.

    One curiosity of today's right/left political culture is that it seems mostly on the right that complaints about one's "betters" arise. Folks on the left tend more to accept that they will have betters, in almost any field of endeavor you can name, and tend to be fine with that. In that respect, at least, expectations on the political left seem more compatible with the notion of meritocracy than do those on the political right.

  • PoxOnBothYourHouses||

    SL: "The problem with meritocracy is that it requires that the (less-meritorious) majority, agree to be led and disciplined by the (more meritorious) minority."

    It once was (and still may be) that many poor whites -- for example the white mill workers in "Millways of Kent" -- held, when their kids raised the idea of being a lawyer or doctor or whatever, would say "that isn't for us." They were happy if their kids became something so unexpected, but they thought aiming for it was setting themselves up for a crushing defeat.

    But is meritocracy meritocracy incompatible with democracy? Maybe. If you get something of a hereditary meritocracy (which those at the top work like mad to ensure). Charles Murray thinks something like that is happening (in the "Bell Curve" and in "Coming Apart"), and he's worried about it. And he's caught all kinds of hell for supposed cheerleading it.

    Vilfredo Pareto would disagree. His idea of the "circulation of elites" predicts that elites will rise and fall, with no one staying permanently at the top. One can hope, I guess.

  • Rev. Arthur L. Kirkland||

    I'm not sure how racial preferences at universities would help black people who are subject to police harassment, or ignored by cab-drivers.

    Ways to help black people who are subject to harassment:

    1) Avoid electing Republicans
    2) Wait for the stale-thinking bigots to die off
    3) Diminish the influence of conservatism

  • BillyG||

    For some strange reason, it seems all the harassment occurs in localitites with Democrat Governors, Democrat City Councils, and Democrat Police Cheifs. So they're alreayd avoiding electing Republicans for Decades (Chicago, DC, Baltimore, St. Louis, New York, LA,...). Doesn't seem to have done them any good.

    Perhaps they should try:
    1) Avoid electing Democrats.
    2) Wait for the stale-thinking biggots to die off.
    3) Diminish the influence of Authoritarianism and increase the influence of the Rule of Law.

    But nah, why try something different than a policy that has continually not worked for decades.

    Carry on, Tyrant.

  • Sarcastr0||

    Your causal case is pretty bad, BillyG.

    Love your signoff, though - not been called a Tyrant before!

  • Rev. Arthur L. Kirkland||

    And I have never been called a "biggot" before.

    Mostly because I moved to a modern, successful community at age 17 and never went back to the sticks and hicks (random capitalization, Trump-style spelling and grammar, etc.)

  • PoxOnBothYourHouses||

    Sarcastr0: "Your causal case is pretty bad, BillyG"

    And things have turned out pretty damned well in NYC, at least.

  • PoxOnBothYourHouses||

    "For one, the demographers say that whites will be a minority in another 30 years or so. What's the plan for favoring minorities at that point? Secondly, the demographers are also saying that the young'uns are intermarrying at a great rate."

    Not to really disagree, but there are some problems with that.

    (1) Non-Hispanic whites will still be a plurality. And they (or, I guess, "we") will still be majorities in many of the interior states.

    (2) "Minority" doesn't necessarily mean "minority." Not to play Bill Clinton or anything, but the term often refers to a population lacking political or economic power. Eg. Louisiana, South Carolina, and Mississippi were majority black states through the 1900, 1920, and 1930 censuses respectively. Not that it helped them.

    (3) There are already people who gain affirmative action benefits of one sort or another by drawing on a portion of ethnic background (and no, I'm /not/ talking about Elizabeth Warren, about whom the claim is murky at best).

  • Negi||

    I have no problems personally on account of racial preferences, but it's a perilous and slippery incline to demands for racial balancing. Suppose nonjewish whites decided to take this tack and impose quotas on Jewish and Asian admissions to ensure that nonjewish white representation is commensurate with their share of the population. Poland and Russia imposed such quotas on Jews in the early 20th century, and this is widely considered to have been an act of gross antisemitism.

    It seems that people campaigning against racial preferences and balancing in our universities are merely asking that everyone be treated equally. I could imagine some more resentful political movements might decide one day to weaponize this idea of racial balancing against members of overrepresented minorities.

  • Sarcastr0||

    For exactly the historical reasons you cite, I very much doubt the slope will be as slippery as you think.

  • Negi||

    Never underestimate those who feel righteously aggrieved.

  • Sarcastr0||

    Don't underestimate the lessons we've learned from World War II, rightly or wrongly.

  • ||

    There's one takeaway here. The 6th Circuit decision was basically, "Any rule that makes it harder for non-whites to get what they want violates Equal Protection." Any society where such nonsense has the force of law is a joke.

  • Michael Ejercito||

    Members of racial minorities are as free as anyone to lobby for preferential treatment. They just can't lobby for it on the basis of their race, sex, etc. Nor can they be disadvantaged on those bases.

    Neither can members of racial majorities.

  • Negi||

    And therein lies the true danger of this ridiculous doctrine.

  • Joe_JP||

    My mind "reels" (not really ... I'm used to it) that this is taken as a case that is cited as showing the need of picking the right justices. BREYER concurred in judgment. The newbie is throwing red meat again.

    Step one is to assume the premise -- "discriminates against race discrimination" -- but, let's grant that sort of thing. Remember though that affirmative action was upheld repeatedly by the Supreme Court.

    The concern, as noted by the dissent, is that "discrimination" (to merely quote; no scare quote intended) was selectively targeted here. One specific group [yes, the dissent also argued affirmative action was necessary] was burdened by the measure in question. "Discrimination" across the board wasn't targeted.

    Basically, the lede post has to reject decades worth of precedent as bad law.

  • Eidde||

    ""Discrimination" across the board wasn't targeted."

    The Michigan provision banned "discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

    Under such a provision, I (a white person) could not have gotten "minority" preferential status at a traditionally black institution.

  • Brett Bellmore||

    "Traditionally" black institutions should have gone the way of "traditionally" black drinking fountains after the Supreme court finally started enforcing the 14th amendment. It was a big mistake to look the other way when it came to discriminatory institutions, if they were run by or for minorities.

  • Eidde||

    It was a mistake to get *public funding* and *government management* for discriminatory institutions.

  • Brett Bellmore||

    Well, yes: Properly speaking, the 14th amendment only applies to government, and by extension government funded or otherwise privileged institutions. Private discrimination might be morally offensive, but properly isn't any concern of government's.

  • Negi||

    Little-known fact:It only applies to state governments. The federal government relies on the fifth amendment and the necessary and proper clause.

  • Brett Bellmore||

    Which would, in it's current incarnation, be better named the "convenient, and eh, whatever" clause.

  • Negi||

    Primarily, the court adjudicates these questions at the federal level in light of the civil rights act, but it has nominally adopted higher standards of scrutiny for laws that discriminate between Americans on the basis of race since Korematsu.

  • Joe_JP||

    R.A.V. v. St. Paul struck down a law that only covered "race, color, creed, religion or gender" as a content based discrimination. The state could penalize fighting words, but not only those that harm certain groups.

    The fact whites and blacks were protected under the "race" category didn't change this. So, what this tells me in relevant fashion is unclear. The provision says that certain types of discrimination [or "preferential treatment" which under Supreme Court precedent is allowable in part as a remedial measure] for certain groups is banned -- only to be changed by a more burdensome political change -- while for others it is not.

    A libertarian approach should find this somewhat troublesome. All classes of discrimination should be fought, not certain ones.

  • Bob from Ohio||

    "traditionally black institution"

    Only the public ones.

    I question why we still have any public traditionally black institutions.

  • Brett Bellmore||

    Because institutions have a drive to preserve themselves, even after they're not needed anymore.

  • Drewski||

    "(The one Bush appointee who voted against MCRI's constitutionality was initially a Clinton appointment and cousin-in-law to Senator Carl Levin (D-Mich))."

    I stopped reading here. It is incredibly inappropriate to imply that a judge's relatives' marital choices affects that judge's work unless you have strong evidence supporting that implication. That's a pretty serious charge of undue influence.

  • Brett Bellmore||

    You shouldn't have stopped reading.

    The major parties have different views of the appropriateness of racial discrimination in public policy, and it's reflected in their judicial nominations. That's just a fact of life.

  • Bob from Ohio||

    Its the reason he got appointed. You take the good with the bad.

  • loki13||

    Welp.

    I was looking forward to a new VCer who would comment on issues surrounding labor and employment law.

    But it looks like we will be seeing her comment on those issues approximately as often as Prof. Bernstein discusses evidence law.

    I have to say, tossing out red meat to conservatives is remarkably easy to do, but a terrible look, and isn't likely to make people that are knowledgeable about the subject area take your posts as good-faith examples. So- another Kontorovich, it looks like. Pity.

  • Joe_JP||

    It might be improper to say, but appreciated a new female voice among the VC-ers, but yes, her first few entries is tedious red meat. This should not only upset vegetarians.

  • loki13||

    "It might be improper to say, but appreciated a new female voice among the VC-ers"

    I did too, although that is some type of irony given that she has spent all of her posts sending out anti-AA red meat.

    I wonder if she has thought about an introspective post, perhaps discussing what it is like to be a conservative (libertarian) women, and whether she has benefited, or suffered, from AA, and whether she believes that it is advantageous from a career perspective to speak out against it.

    Naw ....

  • Sarcastr0||

    I was thinking she might tire herself out and turn to her academic area, but there's been enough personal umbrage about petty stuff I suspect her outrage engine is up to the task.

  • Eidde||

    It's well-known that the only people who oppose affirmative action are racists and political opportunists, plus can't-keep-up goobers.

    /sarc

  • Eidde||

    And there I fell into the mistake of using the umbrella term "affirmative action" - which when used properly doesn't involve discrimination. For instance, deliberately advertising a job in forums read by people of various groups isn't discriminatory.

    Racial preferences are the controversial part of affirmative action. And as far as racial preferences are concerned, we're simultaneously asked to believe (a) it doesn't harm very many people at all, but (b) it benefits lots of people, and (c) being against racial preferences is something racists do if the preferences favor the "right" groups.

  • Sarcastr0||

    It's not her subject, it's her content and tone.

  • Bob from Ohio||

    Poor little snowflake.

    Does the mean lady have a nasty tone?

  • loki13||

    "Does the mean lady have a nasty tone?"

    Who cares? The point is that, in addition to writing about the same thing you can find anywhere else right now, she does it poorly.

    The best writers on the VC are those that make you question what you assume to be true, the ones that approach an issue and, even when you disagree with their point, at least force you to acknowledge that they have a good point (from a different perspective).

    The worst, the Lindgrens, the Kontorovichers, the (apparently) Heriots, provide nothing more than red meat to those that would agree with them, and allow those don't to easily dismiss them.

    At a certain point, whether it is because of platform (Reason) or because they bad new writers like Heriot chase out the good old writers like Kerr, the signal/noise ratio will be such that this will be just another Whelan-esque red meat site. That would be sad for some of us, if not you.

  • PoxOnBothYourHouses||

    Bob: "Does the mean lady have a nasty tone?"

    Yes. I, for one, prefer EV's, even when I disagree with him.

  • BillyG||

    And there I fell into the mistake of using the umbrella term "affirmative action" - which when used properly doesn't involve discrimination. For instance, deliberately advertising a job in forums read by people of various groups isn't discriminatory.

    Strange. I have never once heard where one advertises reffered to as "affirmitive action". I've only heard of it reffer to racially based policies.

  • Eidde||

    "Affirmative Action Outreach Programs" sure gets a lot of hits on Google.

    Of course, some of these programs may be preferences in the garb of outreach, but I'm not clicking all those links.

  • PoxOnBothYourHouses||

    In academe I've seen a lot of "target of opportunity" academic position ads.

  • Brett Bellmore||

    Pretty much are just preferences disguised as outreach. The problem is that the only way you're allowed to conclude you've done enough "outreach" is if you hit the right numbers.

    So in practice they turn into quotas, achieved by covert or open discrimination.

  • loki13||

    Seriously, though, wouldn't it have been nice if she was trying to push something other than the red meat cause du jour?

    I litigate for, and consult with, employers on a regular basis. And do you know what their top three concerns are?

    1. FLSA (and related issues). Is it a coincidence that SCOTUS is handling one case or so a year on this? No, it isn't.

    2. The recent rise of sexual harassment in the media. This is recent, and kind of a big deal. Not even so much for the Title VII claims (although this might change ... but as a general matter, these types of suits are incredibly difficult to win for multiple reasons) as the unwanted publicity.

    3. Retaliation claims. All harassment/discrimination claims die, and are reborn as retaliation claims.

    That's it. No employers care about the kind of crud that she's peddling. Seriously, I was hoping for some real legal analysis, not some "real feminists hurt women by supporting affirmative action, and I know because I know things" kind of crud that we have been seeing.

  • Sarcastr0||

    I'd like to see something on the legality of 'diversity riders' in Hollywood.

  • Eidde||

    Wouldn't putting a diverse cast in one's movie come under the rubric of the First Amendment?

    I mean, would a white actor be allowed to sue for not being allowed to play the character of Black Panther? I wouldn't think so, unless you want artistic creative decisions to be subject to government second-guessing.

    What's the latest on that?

  • loki13||

    "What's the latest on that?"

    Close to it would be Claybrooks v. ABC, 898 F.Supp.2d 896 (M.D. Tenn. 2012) (aka, the Black Bachelor case).

    It held that casting decisions are generally protected under the First Amendment.

  • loki13||

    "What's the latest on that?"

    Close to it would be Claybrooks v. ABC, 898 F.Supp.2d 896 (M.D. Tenn. 2012) (aka, the Black Bachelor case).

    It held that casting decisions are generally protected under the First Amendment.

  • Eidde||

    a href="https://n.pr/2HkYdE8">That's interesting, thank you.

  • Eidde||

    (Link works, just use the part in quotes)

  • Sarcastr0||

    It wouldn't be 1A since Hollywood is private. But public accommodations law....

  • loki13||

    Actually, this would be a great time to do an accounting of recent (ahem) additions!

    Heriot: So far, variations on, "Let me tell ya how bad those liberals are. I'll just post a lot of opinion and throw some red meat and hop no one notices that my stuff is unsourced." Early, but FIASCO.

    Rosenkranz: Who? FIASCO.

    Kontorovich: I am very respected, but I was added to the VC to make Bernstein look like a reasonable voice for peace in the Middle East. FIASCO.

    Baude: Really smart. So smart, he left (but he did come back). Success!

    So ... 1/4? Not a great batting average. Of course, Prof. Lindgren is always in the wings, waiting to elaborate on the great FEMA/Brownshirt camps to be introduced, so we have that, I guess?

    (Seriously, there have to be people like EV, SV, IS, OK, and even JA that you can bring on board. Right? There have to be other Baudes. Smart people that are more interested in the law than in raising their conservative profile?)

  • Bob from Ohio||

    You can ask for a refund if you are unhappy.

  • Rev. Arthur L. Kirkland||

    Not if you're Artie Ray Lee Wayne Jim-Bob Kirkland. The Volokh Conspiracy censorship committee banned him.

  • Negi||

    EV wrote about this too; it's on his university website. Is it wrong to want people to be judged as individuals?

  • Sarcastr0||

    EV wrote about it in a thoughtful way offering substance and citations. Not this claptrap.

  • Negi||

    lol did you ever read the articles?

  • Sarcastr0||

    Only what he linked on this blog.

  • Negi||

    Maybe you should lol

  • Stephen Lathrop||

    Negi, judged as individuals by whom, using what methods, in what context, and with what consequence? At the ballot box, in the segregated South, using a literacy test, with disfranchisement the consequence, yeah, it was wrong.

  • Negi||

    Little-known fact: Literacy tests in the south were terrible because they were not administered universally, but only to people with no great grandparent who couls vote etc etc. If states wanted to impose a universal raceblind literacy/competency test, I don't really see a problem.

    But at any rate, with respect to university admissions? I would move to a standardized testing-only system.

  • Brett Bellmore||

    Indeed, literacy tests were ruled constitutional by the Supreme court, so long as they were impartially administered. (They weren't of course, but THAT was the problem, not their existence.) They were outlawed as an exercise of Congress's "time, place, and manner" power, not struck down as unconstitutional.

  • Joe_JP||

    Adler has enough hate from liberals that he has cred, right?

    I kid!

  • loki13||

    Adler has some great admin law posts, and I generally enjoy his more thought-out posts.

    I'm not a huge fan of his "repost something, not gonna comment on it, but, HEY" thing, which generally is worse than the scrolling chyron on Fox, but that definitely gets a pass.

    Then again, part of me thinks that their main criterion for hiring is just to make the old posters look guard. In which case, um, mission accomplished.

  • TwelveInchPianist||

    Maybe you can start your own blog, Loki, instead of whining about the product of your betters? Too bad you're not smart enough to be a contributor at a decent blog.

  • MonitorsMost||

    Professor,
    If you're going to engage with precedent on the issue, which I agree is logically problematic, don't pick on the easy one. Take on Reitman v Mulkey. Is it constitutional to pass a law saying that the state will not interfere with private real estate transactions? If no, is the interference with political participation standard the reasoning as to why?

  • Eidde||

    The political context of the Reitman case was that the Warren Court justices were impatient with the slow speed of civil-rights laws in Congress - and I strongly suspect that this context influenced the Warren Court in "jumping the gun" and trying to use various rationales to chip away at private discrimination.

    Maybe I'm mistaken and the justices were simply being impartial adjudicators who didn't care about politics. Everything is possible.

  • MonitorsMost||

    So only possible defense of the case and the doctrine is Warren counting to five?

  • Eidde||

    To repeat:

    "Maybe I'm mistaken and the justices were simply being impartial adjudicators who didn't care about politics. Everything is possible."

  • Rev. Arthur L. Kirkland||

    Why are conservatives always on the wrong side of history?

    Today's conservatives are the ideological heirs of the folks who rooted for Frick at Homestead; sided with Kissinger and Rehnquist on the Pentagon Papers (and Bork during Watergate); figured those dead Freedom Riders got what they deserved; couldn't understand the fuss about Emmett Till.

    They still can't understand why any decent person would object to school prayer (because children whose parents neglect religion need help the most) or a little creationism in science class.

    They hope to see the day when society regains its senses and resumes the second-class treatment that perverted homosexuals deserve.

    They not only think we should make it tough for people to vote but also genuinely fail to understand the problem with literacy tests and poll taxes.

    They appreciate that people are regaining the courage to speak out against public accommodation laws.

    They still get exercised about the hippies who protested against the Vietnam War.

    They not only are ardent drug warriors but understand what motivated the earlier crusades against alcohol (dirty Germans) and marijuana (darkies and their reefer madness).

    They are so committed to their cause that they will change party registration and lie to stack the vote on a civil rights commission, for fear some black person might benefit from a government action someday.

  • MiloMinderbinder||

    It's my observation that liberals are the ones who are the true creationists.

  • Rev. Arthur L. Kirkland||

    You are correct, in the sense that liberals (with libertarians) create most of America's progress.

  • Eidde||

    Wait...conservatives are biased against Germans?

    I thought conservatives were Nazis.

  • Brett Bellmore||

    It would be more accurate to say that conservatives are always on the 'wrong' side of history in the opinion of liberals. Which answers your question, of course.

  • Rev. Arthur L. Kirkland||

    If you think I have misidentified the right side of history with respect to Homestead, the Pentagon Papers, the Freedom Riders, Vietnam, treatment of gays, the drug war, etc., you are free to try to make the case for the side of history chosen by Henry Kissing, Bull Connor, Henry Clay Frick, James Dobson, George Wallace, Jerry Falwell, William Rehnquist, Jesse Helms, Jeff Sessions, etc.

  • Negi||

    Liberals changed their minds on all of those issues too lol.

  • Jett's Pop||

    As much as I hate to defend the Sixth Circuit majority, their conclusion was not completely crazy. First, as Prof. Heriot states, Washington v. Seattle was a logical mess. The majority may have said that the opinion was "unrelated" to race-based affirmative action and other cases, but that's not the same thing as saying that application of the logic of the decision to race-based affirmative action is *wrong* or *illogical*. Second, a good case can be made for the proposition that a majority of the Supreme Court agreed with the Sixth Circuit majority. Prof. Heriot does not mention that Justice Kagan joined the dissent. And Justices Scalia and Thomas concurred in the judgment, stating that MCRI probably *did* violate the "political process" doctrine from Washington v. Seattle, but that the case (and the doctrine) should be overruled. That obviously was not an option that the Sixth Circuit had. In any event, five Justices (Sotomayor, Ginsberg, Kagan, Scalia, and Thomas) apparently all believed that MCRI could not survive the "political process" doctrine from Washington v. Seattle.

  • Eidde||

    "...Justices Scalia and Thomas concurred in the judgment, stating that MCRI probably *did* violate the "political process" doctrine from Washington v. Seattle, but that the case (and the doctrine) should be overruled. That obviously was not an option that the Sixth Circuit had."

    That's why we need the Supreme Court...to overrule all these mistaken Supreme Court decisions.

  • Rev. Arthur L. Kirkland||

    Despite being an ardent practitioner and beneficiary of affirmative action for Republicans and conservatives, Commissioner Heriot seems curiously and stridently opposed to affirmative action for blacks or others.

    I do not know Commissioner Heriot, so I do not assume this is bigotry at work. Perhaps it is merely polemical partisanship with ugly (but, to the commissioner, tolerable) byproducts.

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