The Volokh Conspiracy

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A Chance to Repair the Law

Grutter deference never made any sense.

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As you probably know, the Supreme Court has agreed to review Students for Fair Admissions v. Harvard and its companion case, Students for Fair Admissions v. North Carolina. Arguments will likely be heard in October.

Both cases concern race-preferential admissions policies. The Harvard case looks at the treatment of Asian Americans in particular.

Am I being a naive Charlie Brown in thinking that Lucy won't pull the football away this time?  Maybe.  But hope springs eternal, so I am expecting some sort of win for SFFA.

The "law" as it stands today is in serious need of … uh … clarification. In Grutter v. Bollinger (2003), the Court upheld the race-preferential admissions policies of the University of Michigan Law School. But it did so in a very peculiar way. In a 5-4 decision, it agreed with the petitioning students that the Law School was discriminating on the basis of race. There was really no denying that. It therefore agreed that strict scrutiny must be applied. So far, so good. But then the Court turned around and deferred to the judgment of the University of Michigan on whether the need for diversity is a "compelling interest."

Oh my. Deference? That's the opposite of strict scrutiny. The whole point of a strict scrutiny test is that courts are not supposed to defer to state authorities engaged in race discrimination. Courts are supposed to conduct a searching inquiry to determine whether there is a compelling interest that is being served and whether the discriminatory law or policy is narrowly tailored to serve that interest.

Imagine if the Court had deferred in Brown v. Board of Education (1954). At the time, there was no shortage of experts willing to testify that students learn better in segregated schools.

Strict scrutiny is supposed to be so high a standard that back in the 1970s Gerald Gunther, one of the leading constitutional scholars of that era, called it "strict in theory, fatal in fact." After Grutter, it was a toothless tiger.

In Fisher v. University of Texas (2013), the 7-1 majority seemed to be aware that "Grutter deference" was inconsistent with the Court's previous equal protection jurisprudence. But rather than abandon it, the Court indicated that Grutter deference would apply only to the "compelling interest" prong of the strict scrutiny test and not to the "narrow tailoring prong."

But different standards for different prongs don't work. Consider Korematsu v. United States (1944), the WWII Japanese internment case, as an example. If the compelling interest is conceptualized as "national security," then it is obviously compelling, but it is so abstract that all the work will need to be done by the narrow tailoring prong: Is removing all Japanese nationals living on the west coast and their children and grandchildren (including many American citizens) during a war with Japan narrowly tailored to fit that compelling interest or is it not?

On the other hand, if the asserted compelling interest is conceptualized as the need to remove all Japanese nationals living on the west coast and their children and grandchildren (including many American citizens) during a war with Japan, then the work is done by the first prong and the narrow tailoring prong is obviously satisfied.

Alas, the majority's desire to punt in Grutter and its lack of willingness to fix it in Fisher has bollixed up the law surrounding strict scrutiny at a very basic level.

(When I have time, I'll try to blog on why a better argument can be made for deferring to public opinion, but ONLY when it OPPOSES race discrimination, not when it FAVORS race discrimination. It's not easy to understand why the Court should ever allow a governmental entity--or in the case of Harvard an entity that is legally required to follow the constitutional standard--to drag the country kicking and screaming into racially discriminatory policies. If the public is actually against it, it's hard to call the need for race discrimination compelling.)

NEXT: Today in Supreme Court History: February 7, 1870

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  1. The Court is highly responsive to opinion, but, unfortunately, it's not public opinion they're responsive to, it's only 'elite' opinion.

    1. As they say, those Georgetown cocktail parties must be kick-ass.

    2. Same with politicians. I saw a headline recently that claimed there was zero correlation between public opinion and passed legislation.

      The generational machinations of the Federal Class are finally bearing fruit. Our politicians have re-election rates that rival Saddam's Iraq and Stalin's Russia. Our law-making bureaucrats are unmoored from any accountability to the public with their "independent agency" status and the rest of the Federal Class civil servants are held to account by absolutely no one.

      The Federal Class only exists to enrichen themselves and to oppress the masses. It's time to burn it all to the ground and start all over.

      1. You know, there would be more correlation between public opinion and passed legislation if we didn't have anti-democratic institutes like two senators per state and the electoral college. Those anti-democratic institutions are basically carte blanche for politicians to ignore public opinion. Just sayin'.

        1. Why do you ignore the House? The House has a > 90% incumbency rate.

          Rep. Dingell died and his wife inherited his seat.

          1. The House can't pass legislation on its own; it needs the Senate and the President to go along. And over in the Senate, a chamber that already heavily favors conservatives because of two senators per state requires 60 votes on top of that.

            To the extent that you really do care about government not being responsive to public opinion and aren't just concern trolling, one huge step in the right direction would be to get rid of anti-democratic institutions.

            1. Weird how you can't seem to include the House, which is just as undemocratic.

              1. Oh, I favor abolishing gerrymandered house seats too. But the House is a minor part of the problem. Democratizing the Senate and abolishing the EC would fix 80% of the problem.

                Weird how you just ignore that.

                1. Weird that I won’t just accept your argument and your quantifications at face value?

                  That is weird, I guess.

                  Also weird how you assign so little to things like:

                  Independent, law making, federal agencies that were created to be free from political accountability.

                  A presidential office that is pretty weak.

                  Federal and state agencies colluding with activist groups and compliant courts to create or change policy in secret.

                  Election laws and rules that have made becoming a Senator or Congressman a virtual lifetime appointment.

                  1. Oh look, squirrel, said BCD.

                    You're trying to win the argument by changing the subject. In point of fact, the Senate and the Electoral College are the major part of why public opinion counts for very little when it comes to settling national policy. That doesn't mean nothing else factors in, but it does mean that if you are serious about fixing the problem of a government out of touch with public opinion, those two places are where to start.

                    And I haven't "assigned so little" to federal agencies; I haven't mentioned them at all. That's because it's impossible to talk about anything if we have to talk about everything. I didn't mention the Civil War or Paul Revere's ride either.

                    So fine, you're not actually interested in making government more responsive to public opinion; you're just concern trolling. That was my suspicion at the beginning. My mistake for continuing to engage you.

                    1. >In point of fact, the Senate and the Electoral College are the major part of why public opinion counts for very little when it comes to settling national policy.

                      I don't accept your premise.

                      The House nor the Senate give a crap about public opinion because they've secured their incumbencies and have outsourced the dirty to independent Federal agencies.

                      As we saw with Trump and now with Biden, the electoral college doesn't mean shit because the Presidency doesn't mean shit.

                      You're hung up on the Senate and the Electoral College only because those are the current Leftwing tropes being spoonfed to the masses by Democrat Brain Tenders and Mind Masters.

                      You didn't reason yourself into that belief. You were told it.

                      We make a government more responsive by having the people who govern the people accountable to the people. Right now no one in Washington DC is.

                      Why changing the Senate make the Senate more accountable when they get reelected no matter what?

                      Why would changing how the Electoral College make the Executive more accountable when there are 30 agencies who don't give a flying fuck whose in office or what the people want?

                      Senate and Electoral College are just stupid tropes for stupid people.

                    2. Sorry for all the dropped words, phones suck for long comments.

                    3. OK, your original comment was that you "saw a headline recently that claimed there was zero correlation between public opinion and passed legislation." Agencies are irrelevant to "passed legislation" since that is done by Congress. I then responded to your original comment, and you have now changed the subject by making it about agencies, which don't enact legislation. (Yes, I know, they engage in rule making, but Congress still has the authority to prevent any rules they make from becoming law, so it's still on Congress.) So, if you now want to have a separate discussion about agencies, fine, but your original comment could only be read as relating to Congress.

                      On the subject of entities that actually pass legislation -- Congress, with the president's signature -- yes, gerrymandered House seats are part of the problem, but they don't come anywhere near the damage done by the fact that the rural states, whose voters are completely out of touch with what every poll shows most Americans want, whether the subject is abortion or health care or tax policy -- have power far disproportionate to their actual numbers. That is, if you think Congress should actually reflect the will of the people. I understand that not everyone does, but since your initial complaint was that Congress is unresponsive to public opinion, I'm giving you the benefit of the doubt.

                      And I flatly disagree that Trump and Biden show the presidency is unimportant. Without the electoral college there would have been no January 6, since Trump wouldn't have been elected in 2016 in the first place. Without the electoral college, the Supreme Court would currently be 7-2 Democrats rather than 6-3 Republicans. Most of what happens these days happens by executive order specifically because Congress can't get anything done.

                      Now, again, you may not care about any of that, or maybe you're too happy with the bottom line outcome to care. But, going by your original statement, if you're concerned about the entity that passes legislation being out of touch, I promise you democratizing the Senate and abolishing the EC would go a long way in resolving that problem.

                2. So you want to amend the Constitution.

        2. Your "just sayin'" is off topic and is a worn-out leftist meme and hardly an excuse for discriminating against any ethnic group.

          1. Which ethnic group am I proposing to discriminate against?

            1. We were talking about Asians.
              Don't worry; its common to be forgetful when we get older.

              1. I must really be old then because I don’t recall saying anyone should be discriminated against.

                1. You never heard of Harvard University?

                  1. I don't remember saying that either.

                    1. You did not say it BUT the OP featured it positively, hence my comment.
                      Playing dumb doesn't work too well.

      2. Disaffected, antisocial, conservative bigots not only are my favorite culture war casualties but also provide, with their whining, that American progress continues and has been worthwhile.

        1. What progress are you crowing about? What exactly are you so proud of?

          The systemic racism against minorities?
          The minority incarceration rates?
          The wealth inequality?
          The social mobility of minorities?
          Minority crime rates?
          Minority poverty rates?
          Minority educational outcomes?
          Minority healthcare outcomes?
          Institution approval and trust ratings?
          Climate progress?

          1. This progress:

            Inclusiveness over insularity.

            Tolerance over bigotry (racism, gay-bashing, xenophobia, misogyny, etc.).

            Reason over superstition.

            Education over ignorance.

            Science over dogma.

            Diminished unearned privilege.

            Increased consumer protections.

            Increased environmental protections.

            Voting rights.

            Reproductive rights.

            Civil rights.

            Modern, successful, educated communities over can't-keep-up backwaters.

            Strong research and teaching institutions over backwater religious schooling and downscale homeschooling.

            Those elements of more than a half-century of American progress, shaped by the liberal-libertarian mainstream against the wishes and efforts of Republicans, conservatives, and faux libertarians.

            Plenty to celebrate. Plenty more work to do in an improving America.

            1. Those are memes and slogans, not outcomes.

              I saw better memes at those stupid Russian marches where those angry birthing people and females with penises wore those stupid pink hats.

              1. You are welcome to stick with ignorance, superstition, bigotry, and the rest of the right-wing platform, BravoCharlieDelta, and to dislike and disparage the progress your betters have arranged over your stale preferences and ugly conduct.

                But you will continue to comply with the preferences of the culture war's victors, and to watch America continue to improve over conservative objections until the day you are replaced in our electorate by a better, younger, more tolerant and inclusive, modern American.

  2. I'd be a nice win if this was overturned. Equal protection under the law shouldn't be a legal fiction.

    1. Harvard is a private school so equal protection does not apply in that case, only anti-discrimination law. You could see a split decision saying private schools can and public schools can't do what's alleged in these cases.

      1. I think that's unlikely, although I have to admit its consistent with the enormous, almost obsequious deference that the courts have paid to Harvard ever since Powell's opinion in the Bakke case.

        But I count 6 votes to invalidate Harvard's policy. The only question is how strict the standard they announce will be.

  3. ". . . or in the case of Harvard an entity that is legally required to follow the constitutional standard. . . ."

    (Law) Prof. Heriot, can you point to this "legal" requirement since Harvard is a private institution?

    Also, here's the First Court's decision for Harvard.

    Lot's of good tidbits like this:

    "a) Pre-Application Recruitment Efforts by Harvard

    Harvard engages in significant recruitment efforts. Each admissions cycle, it buys the names and contact information of students who do well academically and on standardized tests from ACT and the College Board, the two main organizations that administer standardized tests used in college admissions. Harvard uses this information to assemble a 'search list.' That list in relevant years has had more than 100,000 students.

    It purchases information for some groups of students, such as African American or Hispanic students and for students from states Harvard has labeled 'Sparse Country,' who have lower standardized test scores than other students.

    Students on the search list are twice as likely to be admitted to Harvard as students who are not on the search list. But correlation does not imply causation. Because the search list mechanically includes students who do well academically and have high test scores -- students who would be stronger applicants to Harvard than those who have less impressive academic and testing credentials -- it does not follow that being on the search list causes these students to be admitted at higher rates.

    Harvard uses 'Sparse Country' as a shorthand for areas of the United States that are sparsely populated. Sparse Country includes twenty states: Alabama, Alaska, Arizona, Arkansas, Idaho, Louisiana, Maine, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oklahoma, South Dakota, Utah, Vermont, West Virginia, and Wyoming."

    https://casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1

    1. (Law) Prof. Heriot, can you point to this "legal" requirement since Harvard is a private institution?

      Harvard takes Pell Grants and other federal funding. As Harvard takes the funding, Title 6 & Title 9 require Harvard to be non-discriminatory with regard to Race, Ethnicity, & Sex.

      1. Yup. From Bakkee:

        "Title VI ... merely extends the constraints of the Fourteenth Amendment to private parties who receive federal funds.

        1. Of course, that itself was a dodge; that's not what the CRA says. So what SCOTUS did is first hold that equal protection under the 14th amendment doesn't actually require non-discrimination, and then hold that rather than the CRA meaning what it actually says, it "really" means to forbid only what the 14th amendment does.

    2. Have it your way. Really. By all means.

      Since Harvard is a law unto itself, as you seem to believe, there would be no problem making Harvard pay taxes like any other business. Including taxes on Capital Gains from its endowment.

      1. FWIW - Harvard operates for a profit, it is just exempt from taxation under subchapter F of the IRC (section 501 et seq, 501(c)(3).

        1. So revoke the exemption if they don't want to play by the rules we plebs must.

          1. Harvard has a special status under the Massachusetts constitution, distinct from educational institutions in general. Revoking that status is hard.

            1. The federal government is not bound by the Massachusetts constitution, he is talking about the Internal Revenue Code exemption.

            2. Two separate issues
              1) the legal structure of Harvard Incorporated under the relevent Massachussets statutes
              2) the tax exempt status under the 501 of the IRC

        2. That's not what not-for-profit means. All (non-bankrupt) NFPs make money. But that profit can't accrue to any individual.

      2. Darth, start taxing churches and then we'll see about taxing universities, OK?

        1. I would call you a moron, but I don't want to insult morons.

          Show me a church that discriminates against specific races, then you may have an argument.

          This is a false equivalency. Harvard is exempt from taxes and believes that exemption extends to everything they do. Such as discriminating against specific racial groups.

          But I guess in your world, discrimination is perfectly acceptable, as long as it's the right people you discriminate against.

            1. Well hey now, that's not what he meant. He meant white churches, not black ones.

          1. "Show me a church that discriminates against specific races, then you may have an argument."

            ...show me a church that discriminates?

            Really? I mean, you have to be kidding, right? Almost all of the current religious litigation is over the ability of churches to opt out of generally applicable discrimination and public accommodations laws.

            This is up there for one of the stupidest comments ever. And if you restrict it to just race, well, there's plenty of examples there, too. Of course, you can depend on Brett to find one of his favorites.

            1. Convenient how you left out "specific races".

              1. Is it? Go on and do the research yourself- it's not that hard.

                Or, just keep beclowning yourself. Which you are pretty good at, based on your commenting history.

              2. I know the Mormon church had a very bad track record of discriminating against black people while happily accepting the tax exemption. But it’s possible they cleared that up in recent years.

                I think when it comes to discrimination against other protected minorities - not race related - it gets a little more tricky. Because certain religions do have rules against endorsing or contributing to (what they think of as) specific behaviors.

                I don’t know what the legal standards should be for religious tax exemptions, or if they should even have any. But the title VI violations of certain private colleges seems pretty clear to me.

                But I’m not a lawyer.

          2. I grew up in a church that believed and taught white supremacy. On the rare occasions when some unsuspecting black family showed up by mistake, they were politely told they would probably be more comfortable worshipping somewhere else. I once heard one of the elders say that his only real objection to the Holocaust is that it wasn't completely successful in actually eradicating all Jews.

            That was in the 50s, but you can still find such churches. Not as many as there were then, but they're still out there. My brother still attends one, bless his heart.

          3. " Show me a church that discriminates against specific races, then you may have an argument. "

            Should the churches that continue to treat women as second- or third-class citizens (even in modern America, believe it or not) get a pass, in your judgment?

            1. Get a pass?

              Oh, you mean from the punching fist of politically motivated power grabbers!

              Yes. We The People gave churches a pass from them precisely because of the attack form you use: religion as rallying point to put down competing religions.

              You just don't think you are one. Open your eyes.

              1. I tend to object to special privilege based on religion. I blame my education, character, and experience.

        2. "start taxing churches and then we'll see about taxing universities,"

          Harvard has a 50 billion + endowment. Show me a church with that.

          Upper middle class and rich donors get a tax deduction, the endowment grows tax free and they still charge $60,000 tuition. Plus all that valuable Cambridge real estate, no taxes paid on that either.

          1. I hate to be the one to mention it, but the Latter Day Saints has approximately twice that amount, being one of the wealthiest institutions on the planet. The organized Catholic, Anglican, and Orthodox diocese are also on the same scale. There is a reason the Machiavelli discussed Bishops on the same level as Barons.

            Now, independent denominations are not nearly as wealthy, but arguing about scale is not an argument you can win here. Stick to principles. "They are deliberately violating explicit law" or something of that form.

            1. Fine, tax the Mormons.

              You are wrong about the other churches though.

              "Machiavelli discussed Bishops on the same level as Barons."

              That was 500 years ago, the Catholic Church does not have huge liquid assets.

              1. Your results-driven analyses produce comical results. Educational institutions, modern organizations, the Mormons, Jews, Muslims, and a few others are tossed aside in Bob from Ohio's bigoted and backward world, but the Catholic Church and Opus Dei are entitled to snowflakey coddling.

                This is why Bob from Ohio's views are increasingly irrelevant in today's America, particularly among educated, reasoning, accomplished, tolerant, modern Americans.

                Open wider, clingers.

          2. Harvard has a 50 billion + endowment. Show me a church with that.

            Roman Catholicism: Hold my beer. Billion with a 'b', eh?

            1. "Roman Catholicism: Hold my beer. Billion with a 'b', eh?"

              Show me your evidence then. Thinking the US Roman Catholic church has trillions of liquid assets is kinda silly.

              1. You think Harvard's endowment is liquid?

                Pick your goalposts.

                1. He's just flailing, as is customary from clingers when they get cornered in modern America.

          3. They may list their tuition as $60,000 but few pay that amount. A few years back when darling daughter was looking, a student with parental AGI of $125K paid $1,000 and the parents were on the hook for $5k.

    3. So when Woolworth's closed down it's lunch counters to keep blacks out, they were acting as a "private institution".

      Ape dad will bend himself into a pretzel to side with the progressive view, no matter how wrong it is.

      1. "So when Woolworth's closed down it's lunch counters to keep blacks out...."

        Where did you get that tidbit? I don't think it's true. The last remaining Woolworth lunch counter was still running in 2019. In 1990, the original four black college students ate lunch in a Woolworths to re-enact their protest which started the movement in 1960.

        1. Huh? I'm not comparing now; I'm comparing then. Ape Dad's point was that private institutions should be able to discriminate. I was just pointing out an example in American history where that happened and was subsequently ruled illegal.

      2. Woolworth's voluntarily desegrated its lunch-counters in response to the protests in 1960, four years before they would have been required to do so by the Civil Rights act of 1964.

        1. It isn't widely appreciated today that companies didn't typically WANT to discriminate, it was losing them customers. They were being forced to by local laws.

          Often these protests and test cases were undertaken with the assistance of the company being protested, in an effort to get out from under the law.

          1. It isn't widely appreciated today that companies didn't typically WANT to discriminate, it was losing them customers

            This is nonsense. Why did it take protests for Woolworths' to desgregate? Yeah, yeah, streetcars, blah, blah, blah.

            Really, Brett, here is the thing. In the Jim Crow era southern whites were overwhelmingly racists. Restaurants that served Black customers would have lost business, not gained it.

            As I've pointed out repeatedly, there was all sorts of discrimination - employment, housing, public accommodations in northern states, that was not mandated by law.

            That whole "the market would have solved it" argument is utter BS.

            1. Yeah, yeah, that's why you needed a terrorist organization with secret membership to attack anybody who stepped out of line: Because nobody actually wanted to step out of line...

              1. Brett, unusually courageous people—present in their usual proportions—would sometimes, very rarely, step out of line. The terrorism was there to nip that in the bud, lest it spread to the merely brave.

                Throughout vast regions, big majorities thought all of that was just right. When regrettable lynchings became necessary, they made postcards depicting the action, and sold them over store counters, as testaments of civic pride.

                Your repeated pro-racist apologetics may just be mere ignorance talking, but if you knew the truth you would understand that your remarks put you in company with holocaust deniers.

                1. Not only that, but protecting the terrorists was popular among Southern whites. They voted for politicians that protected the terrorists, hated those that went after them (e.g., Ulysses S. Grant in the 19th Century; various US Attorneys General in the 20th), and acquitted them when jury trials were brought against them.

                  1. Sometimes the politicians WERE the terrorists.

                    Ben Tillman boasted about participating in lynchings and killing black people.

                    In the 1960s voting rights activist Herbert Lee was killed by State Representative E.H. Hurst in broad daylight and acquitted by an all white jury despite loads of evidence he was the aggressor.

              2. That's right Brett--they are coming after you. You should be very afraid!/s

              3. Nonsense, Brett.

                Yes, some people might occasionally step out of line, but for the most part they were happy with segregation.

                Look, I lived there, grew up there, heard what was said, understood the attitudes. They were racists, to the core. You can pretend otherwise, since it suits your worldview, but you are just pretending.

                The fact is, market forces reinforced racist practices. Did you know that Blacks were generally not allowed to try on clothes in stores, because whites were reluctant to buy something if a Black person had worn it, even just to check the fit?

                Did you know there was plenty of segregation and racism in the north, without either Jim Crow laws or the Klan to enforce conformity?

                Did you know that southern politicians routinely campaigned by arguing that they were the most racist candidate? Do you think they did that because they didn't think the electorate was racist?

                You don't know what you are talking about.

              4. "Yeah, yeah, that's why you needed a terrorist organization with secret membership to attack anybody who stepped out of line."

                A woman showed up at the Ruby Bridges integration holding a coffin with a black baby doll in it, representing six year old Ruby.

                She did this freely in public. There's a photo of her with it. She's not hooded. She wasn't cowed by the KKK...she was actually super proud of doing this. She also wasn't surrounded by secret KKK members...she was surrounded by lots of likeminded white members of her community. Who all proudly and openly shouted and spat at Ruby (again, a six year old child).

                The many white people who willingly went out to publicly yell and spit at children going to school weren't being threatened by anyone...they simply didn't want integration.

            2. Your hatred of free markets while reaping all the benefits is the BS.

              1. That's laughable.

                I don't hate free markets. I do try to understand, rather than worship, them.

                Can you really not grasp how they can reinforce discrimination?

                It's 1958, say, and you run a restaurant in Birmingham. Assume no Klan, no Jim Crow laws. You can serve Blacks if you like. But you'll lose at least 50% of your white customers, and the extra revenue from the Black ones will make up maybe a quarter of that.

                What does the market tell you to do? Isn't it rational to discriminate? Don't market forces encourage you to do just that?

                1. "and the extra revenue from the Black ones will make up maybe a quarter of that."

                  See where you built your conclusion into your premises? WHY would the extra revenue from the black customers not make up for losing half your white customers? It's not like blacks are a tiny minority in Birminghham.

                  1. In 1960, Birmingham was 70% white, 30% black. And, free hint: the black population was a lot poorer.

              2. Jim Crow really shows how human behavior makes free markets not act as the pure efficiency engines economists of the 1990s thought.

                We're doing better on the behavioral economics front these days, but the politics have yet to catch up.

                It makes for some hilariously incorrect sociology and history though.

                1. The weakness of free markets is that they require an absence of coercion to operate properly.

                  If most of the businesses refuse to sell to a minority, the business that doesn't has a huge guaranteed market, and does well.

                  If selling to the minority gets you firebombed, doesn't work so well, violence can overcome the market's self-correcting tendencies.

                  1. This holds only if you include self-image as coercive. It turns out people will give up a lot of actual worth to maintain their sense of self-worth and fair play.

                    No need for the threat of violence at all. It turns out wrath can at times overcome greed, even collectively.

                  2. Did you follow my example, Brett? At all?

                    You are spouting ideology which simply didn't apply.

                    If most of the businesses refuse to sell to a minority, the business that doesn't has a huge guaranteed market, and does well.

                    In some cases, but not in the Jim Crow South. The business that did that would go broke quickly, because it would lose way more business than it gained. White people simply didn't want to go to a restaurant where there might be Blacks sitting at the next table.

                    Stop being stupid.

                  3. Another point is that many of the small business owners were in fact quite racist themselves. They didn't want to do business with Blacks even if discriminating cost them money.

                    And no, that's not "irrational behavior." It may seem that way to you, because you would never do it, but that's because, unlike those bigots, you don't have a taste for being racist. Let me remind you that economic behavior is motivated by tastes and preferences. Every time you spend money because you feel like doing something - going to a movie, say - you are giving up money to satisfy a preference.

                2. Jim Crow really shows how human behavior makes free markets not act as the pure efficiency engines economists of the 1990s thought.

                  Typed without a single bit of irony while we argue how discrimination is happening at private American colleges right now.

                  1. You're not comparing like with like.

                    Jim Crow happened even in unregulated markets. If you don't believe me, check out Abraroka below.
                    Thus, Brett and Alphabet saying the key to ending discrimination is free markets is wrong.
                    Another reason why it's wrong is the headwind of previous discrimination still continuing, but that looks a lot like class as much as race.

                  2. I have no idea what point you are trying to make.

            3. "It isn't widely appreciated today that companies didn't typically WANT to discriminate, it was losing them customers."

              Not my recollection from living there.

              At the risk of repeating old stories, in the 1950's some restaurants would let black servicemen *in uniform* eat inside, as opposed to getting a sandwich from the back door. My father traveled as OIC of small integrated detachments from time to time. They'd go in, sit down, and see what happened. Sometimes they'd get to eat, sometimes they would get told no blacks even in uniform, and Dad would take them down the road. The notion that the owners who refused them service really wanted to, but didn't only out of fear of the KKK seems ... very unlikely to me.

    4. The basic problem that I think Harvard can't overcome is that they clearly take the "racial diversity" admits out of the Asian pool, and doing that constitutes anti-Asian racial discrimination. If Harvard took the "racial diversity" admits out of the rich white donor pool, they'd have a much better argument. (Although given SCOTUS' composition, it might not matter.)

  4. Either the Civil Rights Act means what it says or it doesn’t. If it doesn’t, it reveals the entire thing to be a fraud whereby elites get their preferred forms of racial discrimination to be blessed by the law under the guise of equality. There is no reasonable way to read the act as sanctioning this sort of facial discrimination. To read it otherwise, is the court telling Congress and the public that they are the law because FYTIW.

    If Harvard did this to any other group except Asians or native Whites, it would have never gone to court. Harvard would have entered into a consent decree and paid a few billion dollars in damages before it ever went to trial. The only reason it is at the Supreme Court and the issue is in doubt is because Asians and native whites are considered lesser races under the law by both Harvard and the left in this country.

    1. “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

      ’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

      ’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

    2. The CRA is worded generic in that it outlaws discrimination but in practice it is only enforced when there is a perceived disfavor of blacks. AND its always OK to favor blacks

  5. Strict scrutiny is supposed to be so high a standard that back in the 1970s Gerald Gunther, one of the leading constitutional scholars of that era, called it "strict in theory, fatal in fact." After Grutter, it was a toothless tiger.

    Yeah, no one talks about strict scrutiny anymore. Come on, even if you think it was wrongly decided, this is over the top.

    1. What? Gail Heriot making an over-the-top rhetorical point that sacrifices legal clarity in service of bombastic stupidity?

      I am shocked.

      1. Propagandist, not advocate.

      2. I thought Eugene may have changed the blog password after going all "Thanks, Amy Wax!"

        1. Why would anyone think that with respect to this blog?

          Are you kidding? That made him love her all the more.

      3. Thanks for the silly ad hominem attack.

        Now please provide your analysis as to why she is wrong. The Court's use of "strict scrutiny" in Grutter was positively Orwellian when compared to its use in dozens of cases prior to that.

        But I will wait until you explain why she is wrong.

        1. What this comment says is 'I really think Grutter is wrong. Like really, super sure it made new law. Burden is on you to convince me of this thing I have declared. But I will wait until you explain why she is wrong.'

          Affirmative Action has always been weird; Grutter was actually a lot less weird than Bakke.

          I was gonna ding you for missing my thesis, but I see you responded below.

          1. You are beclowning yourself again. Heriot quite rightly points out that the Court's holding that the affirmative action at issue before it met strict scrutiny does violence to that term as it was used in many cases before it. Neither you nor Loki have explained why she is wrong, other than attack her personally -- the very definition of ad hominem.
            I don't need your or anyone else to tell me why it's wrong. It's wrong because the Fourteenth Amendment and the Civil Rights Act ban such discrimination, and there is no compelling reason to depart from it. Grutter's attempt to say both are satisifed is an exercise in intellectual dishonesty.
            The real reasoning is, "we treated blacks horribly for almost 300 years, so we can ignore the law as a kind of racial reparations. Maybe in 25 or 50 years we can stop doing that." That's politics, not law.

            1. If she wanted to say it does violence to the term, she can do that. But she didn't.

              You can disagree with a case, and not write fan fiction about what the Justices were really thinking, you know.

              She is conflating what the law is with what she thinks the law ought to be. That's her first error.

              For why the law is wrong, she provides no evidence at all and neither do you. You just ipse dixit 'the Fourteenth Amendment and the Civil Rights Act ban such discrimination, and there is no compelling reason to depart from it.' Which is not even a very good ought argument, much less an is argument.

        2. Well the court got the right outcome, therefore the legal analysis was correct!

          Sincerely,
          Sarcastro

      4. Stop, loki. This clutching of pearls is unbecoming. The fact is it is NOT an over-the-top rhetorical point at all. If you think that's incorrect, back it up.

        1. Based on this exchange, I may be muted by I Callahan
          , but for others reading:

          Grutter did not kill strict scrutiny, as the OP claims ('toothless tiger'). That is indeed nonsense. Check out Bored Lawyer's post below for some numbers:
          https://reason.com/volokh/2022/02/07/a-chance-to-repair-the-law/?comments=true#comment-9342802

    2. "no one talks about strict scrutiny anymore"

      A quick Westlaw search reveals that in 2021, the phrase "strict scrutiny" appeared in federal court opinions 663 times, and in state court opinions 198 times.

      Are you a clown, or just play one on TV?

      1. That, my good sir, was sarcasm.

        Strict scrutiny is very much a current thing, contra the OP's ridiculous statement that: 'After Grutter, it was a toothless tiger.'

  6. There is an aspect of popular, or dominant culture in schools and companies that diversity for diversity's sake is virtuous. It really is fundamentally un-American, and the promotion of this value is usually illegal. However, it is not only tolerated, but dissent is punished. I have personal experience with this. In my company managers and even non-management employees involved in recruiting and hiring activities openly discuss and encourage the almost-exclusive recruitment and hiring of "diverse candidates," which include anyone of color, and in particular women, and women of color. They congratulate themselves for "diverse hires," they celebrate these diverse employees once on board. They openly discuss and encourage efforts to recruit such that only diverse candidates are considered. I remember one manager saying he was only going to recruit at and hire from women in STEM events. This is illegal in the U.S. as it intentionally excludes men from the recruiting process.

    No one DARE speak out about this, as it is considered one of the company's core values. To do so would be career ending, perhaps firing.

    Such it is in the U.S., in companies and schools. Until some landmark decision or prosecution, nothing will change, it will only get worse - deepen, and become more ingrained in company and school culture.

    The white male is the new n*..., j*, etc.

    This is different for Asians, they seem to be valued in companies, but not in schools.

    1. Diverse is code for not black enough. Nothing can ever be too black though. Example is the laughable NFL. The player rosters are disproportionate black and the coaching staff is disproportionate white.

      There is only an issue with the coaching staff

      1. The Volokh Conspiracy . . . the Official "Legal, Often Libertarian, Libertarianish, Definitely Not Republican" Blog of White Grievance.

        From the linked article (concerning the shameful dishonesty by that enabled Prof. Heriot to join the civil rights commission as a "definitely not Republican"):

        "In early 2007, Senate Republicans restored the 6-to-2 bloc by appointing Gail Heriot, a member of the conservative Federalist Society who opposes affirmative action.

        Heriot was an alternate delegate to the 2000 Republican National Convention and was a registered Republican until seven months before her appointment. In an interview, Heriot said her decision to reregister as an independent in August 2006, making her eligible to fill the vacancy, "had nothing to do with the commission."

        "I have disagreements with the Republican Party," she said. Asked to name one, she declined. "

        Of course she did. Because she was lying.

        And an apt fit for a clinger blog with a scant academic veneer.

        1. You always manage to be the biggest idiot, always

          1. For some reason, I just can't get right-wing racists, conservative misogynists, religious gay-bashers, race-targeting Republican vote suppressors, and immigrant-hating Volokh Conspiracy fans to like me.

    2. promotion of this value is usually illegal

      Under what legal theory?

      The white male is the new n*..., j*, etc.

      LOL, look who is in power. Tell me, would you like to become a black woman if you could? I'm quite sure being a white guy has helped me a lot more than it's hurt me throughout my career.

      1. Weird then that its was found that white people lie about their race on college applications. Just throwing away that privelege I guess

        Name a prominent celebrity or athlete who is mixed that even acknowledges that they are mixed? Tiger Woods is the only one who comes to mind and he was scolded for it.

        Obama was our first black president yet he was actually mixed.

        1. Name a prominent celebrity or athlete who is mixed that even acknowledges that they are mixed?

          Derek Jeter. I mean, I don't recall him ever saying, "I am of mixed race," but I remember seeing his parents in the stands at Yankee games, so he could hardly hide it.

          Are you seriously claiming people go out of their way to conceal this?

          Next question.

          1. Ha ha yea Obama always mentioned being mixed and being raised by white folks. Same with Kaepernick.

            Yea they forget to mention it sometimes

      2. I live in a majority black city in a county with a significant black population. The legal community is overwhelmingly white. I can't say it's overwhelmingly male as much anymore. Probably depends on the firm and their culture, but gender parity in law as a whole is getting better in the legal community overall.

        1. Back in the day I worked in the Pentagon. Military is largely black. Guess what the demographics of who works in the Pentagon are, though?

          1. "Military is largely black."

            No it is not. Not even close. Its less than 1/5th

            "Total Military Force Characteristics of the Total DoD Force
            2019
            Demographics Report 7
            1.07 ■ Race of the Total DoD Force (N=2,127,525)
            Members who report themselves as White represent the largest proportion of the total DoD force (70.6%), while Black or African American members represent 16.9 percent. Asian, American Indian or Alaska Native, and Native Hawaiian or Other Pacific Islander members collectively make up 6.6 percent of the total DoD force and 2.5 percent of members report themselves as Multi-racial"

            https://download.militaryonesource.mil/12038/MOS/Reports/2019-demographics-report.pdf

            1. Yeah, I meant minorities are overrepresented compared to the general population.

              My point stands, however.

              1. So, by "largely black" you actually meant, "very slightly over-represented, but actually still a relatively small minority"?

                1. The point is as you climb in rank and responsibility it gets more and more white.

                  Do you dispute that this is the case?

                  My bobbling the initial terminology does not change that.

                  1. Considering that, as you climb in rank you typically joined the military longer ago, and the military used to be somewhat discriminatory, how do you expect the officers to not lag behind the enlisted men?

                    1. But the military also has mandatory retirement.

                      So how long ago do you think the military stopped discriminating? So to pick a random guy, the Army Chief of Staff is a 62 year old General.
                      Do you think the military was being racist in who they allowed to enlist in 1981?

                    2. we could always take the approach of sending out the existing cadre of officers to reeducations camps. And other elites, too.

                    3. "Do you think the military was being racist in who they allowed to enlist in 1981?"

                      No, in fact they were desperate for enlistees.

                      In his white paper of 25 February 1980, General Meyer also stated:
                      "In the near term we must focus our attention on the special problems of recruiting and retaining sufficient numbers of qualified personnel to meet our immediate needs. In the longer term we must develop a more effective personnel management strategy, one which more accurately identifies requirements and better articulates resources necessary to satisfy those requirements. We must recruit and retain those personnel who possess the motivation and qualifications necessary to make a positive contribution to the Total Force. And we must recruit and retain them in the numbers necessary to man the structure required in the 80s and 90s."

                      https://history.army.mil/books/dahsum/1980/ch05.htm

                      By the way, officers don't enlist, they get commissioned. For a guy who worked at the Pentagon, you can't even get basic terms right.

                    4. Some officers come from the enlisted.

                      But yeah, I was a civ, I did not know the ins and outs of military career paths.

                    5. "Considering that, as you climb in rank you typically joined the military longer ago, and the military used to be somewhat discriminatory, how do you expect the officers to not lag behind the enlisted men?"

                      For one of many examples. Colin Powell was commissioned in 1958. I don't recall that his bio mentions any discrimination *in the military* (as opposed to outside the base in the south). I've read at a guess 100+ bios from that era, and I can't think of any that mentioned any widespread discrimination inside the military.

                      "Some officers come from the enlisted."

                      There are a few - my Dad was one - and even a few that go on to high rank, but I think that's pretty rare. If you are commissioned at age 30, you're starting pretty late to get past maybe Major. I'm sure open to correction, my source for that is just being an Army brat.

              2. "I meant minorities are overrepresented compared to the general population"

                Still very wrong.

                "White represent the largest proportion of the total DoD force (70.6%)" cite above

                "Non-Hispanic whites totaled roughly 191,697,647, or 57.8%." White Americans, wikipedia

                1. You're comparing white with non-Hispanic white.

                  Looks to me more like the military is 70% white versus 76% white in the general population.

                  Still, 6% is not nearly the skew I expected; I withdraw the point.

                  1. You "expected"? You mean you didn't actually have any data at hand when you made the laughable comment that "Military is largely black"- you just made that up, because you "expected" that to be the case?

                    1. Yeah, I spoke from personal experience and reputation and generalized on it. Didn't follow my own principles. I have egg on my face, and will hope to take a lesson from it.

                      I was wrong. I did not make anything up. There is a difference.

              3. "Military is largely black."
                You really ought to think twice before submitting information that is easily showed to be incorrect.
                If you meant that the rank get whiter as the rank increases, say that in the first place.

                1. Yeah, I shoulda said that.

            2. You're trying to convince him with facts? Are you new to this blog?

              1. You gonna bring more than insults? If you want to come here to debate, you should try and debate.

                1. Sonny boy, you were the one who started with the insults, and I can dish it out as well as the next guy.

                  1. When I insult people, I explain why I think the pejorative thing is true.

                    You provided empty sniping.

                    Which, fine, there are plenty around here who are into that. I have most of them blocked.

                    1. "When I insult people, I explain why I think the pejorative thing is true.

                      You provided empty sniping. "

                      Who says the perfect comment has never been made?

                      My insults are good, your insults are "sniping".

                    2. While I disagree with Bob, he at least engaged with my comment. That's basically what I ask.

                      Bob - I put forth an objective criteria for comments that meet some minimal criterion here - that they not be empty. Do you have an issue with that? Or do you think my comments tend to be empty? Because I think I'm pretty good at engaging with the comments I reply to, albeit by no means perfect.

                    3. "they not be empty"

                      According to who? I mean who made you czar of the fullness of comments?

                      You could try not insulting people. Then its less likely they insult back.

                    4. I don't think it's a hard line to draw when a comment is purely insulting the character of another commenter.

      3. "promotion of this value is usually illegal

        Under what legal theory?"

        Title VII:

        SEC. 2000e-2. [Section 703]

        (a) Employer practices

        It shall be an unlawful employment practice for an employer -

        (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

        (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

        1. This says nothing about promotion of values.

    3. The white male is the new n*..., j*, etc.

      Imagine being like this. Also....do you think "Jew" is a slur that needs to be censored? Or is there some other slur floating around your mind?

    4. "There is an aspect of popular, or dominant culture in schools and companies that diversity for diversity's sake is virtuous. It really is fundamentally un-American, "

      Some kinds of diversity may be valuable. Diversity of experience may well be educational. Someone who grew up poor, or comes from a foreign culture, or had some other experience different from you, may well contribute something from a different perspective. But the only diversity that counts in many instances is racial. You can have grown up completely privileged, but if you have black skin, or a Hispanic surname, somehow including you yields "diversity."

      1. the only diversity that counts in many instances is racial

        In what instances? Certainly not education, either for students or for faculty. And, contra Publius's anecdote, I don't think that's true in the workplace either, where a unique background is generally something highlighted and discussed in interviews.

        1. Dude, it is well known that black skin is worth 250 SAT points for college, and the equivalent for many hiring situations. It does not matter whether the person grew up in the slums of Newark, or a mansion in Short Hills.

          1. You overplayed your hand with 'only.'

            You should ask yourself why you essentialized race like that.

    5. " The white male is the new n*..., j*, etc. "

      No need to redact at The Volokh Conspiracy.

      Prof. Volokh welcomes vile racial slurs at this blog.

      Repeatedly. Monthly, usually (more than monthly during 2021).

      There's nothing like a chance to use a vile racial slur, coupled with plausible deniability, to make The Volokh Conspiracy's day.

      1. Joe Rogan has acknowledged that he was wrong to use a vile racial slur repeatedly.

        Does Prof. Volokh have the courage to provide a similar acknowledgement?

        Does Prof. Volokh even have what it takes to stop using a vile racial slur? Do his fans demand it, tying his hands?

  7. How can it be possibly be that a claim that the state has an interest in facilitating children being in ia gender diverse environment is, when children are at home, completely irrational, indeed nothing but a pretext for animosity. But the minute children leave the home and enter a school, suddenly the identical diversity interest not only becomes rational, not only becomes not objectively hate-based, but actually, astonishingly, becomes a compelling interest?

    How can this be? It’s not like children change their findamental biological and psychological nature when they leave home and enter a school. Nor are the effects of homes and schools on children so fundamentally different as to create any legitimate logical or scientific basis for such a profound dichotomy.

    There is no rational explanation for treating the two so differently.

    Of course there could be contrary considerations that are different in the two cases and could support things being balanced differently. But the Supreme Court didn’t look at things that way. It looked solely at the interest itself. It said that there is no such thing at all as a state interest in gender diversity when it comes to children’s home environments, it’s nothing but a pretext for hate, but in schools the objectively identical interest is so obvious to all as to be compelling.

    That just can’t. A rational objective neutral observer, a proverbial person born yesterday or from Mars,not caught up in the strange logic of identity politics that people here on Earth seem to take for granted, can’t help but see a problem. Either both interests are at least somewhat rational, or both fall short of compelling.

  8. The thing about "compromise" decisions like Grutter are that no one was happy with it. The right hated it because the court should have ended race based discrimination right then and there. The left hated it because they literally think quotas are not only great public policy but completely constitutional. Instead we got another 20 years of mangled jurisprudence and circuit courts trying to read the tea leaves to figure out exactly what they should do with the decision.

    Hopefully this court ends the entire charade.

    1. The left hated it because they literally think quotas are not only great public policy but completely constitutional

      I'm not sure this is true.

      I am amused by your describing a pretty good compromise ('no one is happy') followed by your conclusion 'so this is why my side should win utterly.'

      1. If the left does not believe in outright quotas then what exactly is "equity" again? Also that has been their main argument for affirmative action since the beginning. It got more nuanced and quiet as public opinion turned against discrimination in the 80's and 90's, but it was still there.

        My conclusion was the decision was stupid and attempting to appease the left is useless. The left didn't say "oh we will go along with this for the better of the country." They just said "till next time my pretties" and flew away on their broomstick. That is why it just needs to end.

        1. So based on some policies in the 1970s, you think that speaks to the values of the left today?

          1. No based upon the statements of leftists in the here and now. The same old company line from the 1970's. They want quotas and that is renewed with the push for "equity" which is a fancy way of saying Jim Crow for certain particular races that do not enjoy current political favoritism.

            1. You have provided no evidence anyone is into quotas these days.

              1. The anti-racist activists seem pretty clear that any deviation from the racial distribution of the population is evidence of active racial discrimination.

        2. The liberal-libertarian mainstream doesn't want or need your appeasement, Jimmy the Dane.

          We will have your compliance -- and that of all bigoted, backward, obsolete clingers -- with the preferences of the culture war's victors, however.

          Your betters thank you for your continuing compliance.

          You get to whine about it as much as you like. (The Volokh Conspiracy is vivid authority for that assertion.)

  9. If it was okay for South Africa to use race as a factor in university admissions, why is it wrong for Harvard? /sarc

  10. "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

    Great news, everybody! We're six years ahead of schedule!

  11. Amazing to me that the same people who sneer at the value of racial diversity defend to the death the importance of geographic diversity in forming the Senate, for example.

    "For the sake of diversity it's really crucial to get input from people in Wyoming, even though there are hardly any of them."

    1. That's an absurd analogy. I guess you don't like the construction of our Republic, and think that not only should congressional representation be apportioned by population, but the Senate, too?

      This is a union of states, not a pure democracy at the federal level.

      1. You know, a lot of elites in England really thought that rotten boroughs were quite good too.

        1. And they keeping increasing in number in the US. (See today's NYT)
          Or do you think that most House seats in the US are competitive?

          1. You do know that the problem with rotten boroughs wasn't that they were "uncompetative", right? They were a violation of equal population. To the point where a representative might be chosen by a single family.

            Anyway, what's the difference between "uncompetative", and "really, really well represented"? Suppose for a moment that you had a population that was about 50-50, and you could draw two districts that were both 50-50, or you could draw districts where one was 100-0, and the other 0-100?

            Why is it better that half the voters in both districts be 'represented' by somebody they don't like?

      2. What better Americans disfavor is the increasing structural amplification of backwater (bigoted, poorly educated, superstitious) votes. Increasing the size of the House, admitting a few states, and eliminating or restricting the filibuster should be good ways to address that problem. With scrupulous compliance with law and precedent, of course.

      3. Why is the construction of our Republic so boss, though? Why is it good that it's not a flat majority?

        I depart from my fellow liberals and agree that it's not a clearly bad thing. But bernard11 makes a good point about that logic being applicable beyond states.

        1. Because back in 1790 12 states didn't want NY to decide everything

          1. New York wasn't the most populous state. Virginia was. New York was fifth.

            1. wreckinball was referring to the illusory good old days for which right-wingers pine . . .

            2. And of course, that completely negates the argument, right?

              Substitute New York for Virginia in the above and respond to that.

              1. I do not object to some level of disproportionate representation.

                I dislike the degree to which structural amplification of certain votes has increased, particularly where the increasingly privileged votes tend to be those of backward and bigoted voices. I see no reason why the number of states (and senators), House members (and Electoral College delegates), or Supreme Court justices should be artificially frozen, especially in a nation whose population continues to increase substantially.

      4. Actually Wellington's defense of the pre-reform Parliament is pretty close to how people defend the Senate today:

        "He was fully convinced that the country possessed at the present moment a Legislature which answered all the good purposes of legislation, and this to a greater degree than any Legislature ever had answered in any country whatever. He would go further and say, that the Legislature and the system of representation possessed the full and entire confidence of the country - deservedly possessed that confidence - and the discussions in the Legislature had a very great influence over the opinions of the country. He would go still further and say, that if at the present moment he had imposed him the duty of forming a Legislature for any country, and particularly a country like this, in possession of great property of various descriptions, he did not mean to assert that he could form such a Legislature as they possessed now, for the nature of man was incapable of reaching such excellence at once; but his great endeavour would be, to form such description of legislature which would produce the same results. The representation of the people at present contained a large body of the property of the country, and in which the landed interest had a preponderating influence. Under these circumstances, he was not prepared to bring forward any measure of the description alluded to by the noble Lord [Grey]. He was not only not prepared to bring forward any measure of this nature, but he would at once declare that as far as he was concerned, as long as he held any station in the government of the country, he should always feel it his duty to resist such measures when proposed by others."

        Wellington had a completely uncritical belief that a clearly unequal system of government was somehow the best system ever devised and that people definitely wanted this system for all eternity and that everyone should just support it because that's the way it was.

        This sounds a lot like Senate defenses: which typically amount to "how dare you question our amazing constitutional system that is the best ever and we can't change it because that's just the way it is."

        1. Wellington was forthright in his view that the best system of representation is the one where the best and highest people have most representation, and the worst and lowest the least. That approach is the one that most ensures the best people get wlected, and that only the best measures, the ones favored by the best people, are the ones that become law. And what other criterion could one have for judging a “good” system of representation other than by the goodness of its results?

        2. "This sounds a lot like Senate defenses"

          Amend the Constitution then.

          1. It may well come to that. I’m just saying that “it’s awesome because that’s the way it’s designed” is a hollow argument made by some of the most regressive people in defense of some ludicrously regressive systems.

            And FWIW, there is a lesson in how the UK approached the Reform Act of 1832 and the Parliament Act of 1911: keep adding members to the un-democratic bodies until they allow democratic reform. King William IV and King George V were ready to keep adding peers to the House of Lords until they acquiesced. So too here. Once you get a majority start adding states and expanding the courts (who much like the peers of the realm serve for life, wear robes, and have fancy titles) until you can get an amendment or the regressive forces realize it’s hopeless to oppose democratic reforms.

            1. " keep adding members to the un-democratic bodies until they allow democratic reform."

              Nothing says pro-democracy like manipulating rules.

              "Once you get a majority start adding states"

              LOL Like the GOP wouldn't add its own states in response once they regain power. Or do you plan on preventing that too?

              NW, NE, SE, SW Dakota, Northern and Southern Idaho, all sound good.

              1. "Nothing says pro-democracy like manipulating rules."

                That's exactly how the Reform Act of 1832 and the Parliament Act of 1911 were passed. By threatening to install more peers on the Prime Minister's advice the result was unequivocally more democratic. After 1832 rotten boroughs were abolished and the suffrage expanded. More democratic. After 1911 the peers in the House of Lords, who at that point was comprised of hereditary seats, was no longer able to vote down legislation that passed the Commons. Unquestionably a democratic result.

                If the rules can be manipulated to lead to democratic results....it is in fact democratic to do so.

                I mean what would be democratic about letting rotten boroughs continue to exist, the Lords stopping legislation, and a limited suffrage? Because that's the result if Grey and Asquith didn't "manipulate the rules"

                "LOL Like the GOP wouldn't add its own states in response once they regain power. Or do you plan on preventing that too?

                NW, NE, SE, SW Dakota, Northern and Southern Idaho, all sound good."

                You are under the mistaken impression that the goal of this is to have a large D controlled Senate that we have now. There wouldn't be one, at least not one that is only two per state with the power that is has. Once the new states are added, the Senators from those states could reform or abolish the body: they could take away its powers to indefinitely block legislation from the House, and take its powers to confirm officials and judges and give those to the House.

                They could also theoretically reduce the number of Senators to zero (that's an equal amount per state).

                1. "Once the new states are added, the Senators from those states could reform or abolish the body: they could take away its powers to indefinitely block legislation from the House, and take its powers to confirm officials and judges and give those to the House. "

                  They cannot do any of those things. The Constitution establishes the Senate and its powers.

                  You also ignore human nature, those new senators are not likely to remove their own power.

                  1. They cannot do any of those things. The Constitution establishes the Senate and its powers.

                    They can by amending the Constitution. I guess I should have been more clear. With new states you could get the necessary ability to amend the Constitution to destroy the Senate.

                    "You also ignore human nature, those new senators are not likely to remove their own power."

                    Ummmmmm have you been paying attention to what I've been saying about Parliamentary reform in the UK at all? Do you understand what a peer is? What the House of Lords is? The House of Commons? Because I'm starting to think you just don't know what these things are if you don't understand this analogy. If you don't know it's okay to ask, although it completely destroys your thesis that people don't give up power.

                    Because the Lords gave up their ability to control rotten boroughs (aka pocket boroughs) and members of the commons gave up the ability to be "elected" in sham proceedings and had to actually have electoral constituencies when the Reform Act of 1832 was passed.

                    More tellingly, the Lords actually gave up its power to vote down legislation in the Parliament Act of 1911. They took away their own power completely.

                    So yeah, humans do give up power. You think everyone is as cynical and power-hungry as you are....but some people have higher commitments.

                    1. "Do you understand what a peer is? What the House of Lords is? The House of Commons? "

                      I knew what they were before you were born. You really are insufferably arrogant.

                      The analogy is just plain stupid. Its a different system, no written Constitution, among other things. No King to threaten to appoint new peers.

                    2. "You really are insufferably arrogant."

                      Well in my defense you were being incredibly dense? I mean you literally made a "humans would never give up power" argument when the Lords did EXACTLY that. If you knew what I was talking about you'd never say something so ridiculous.

                      "The analogy is just plain stupid. Its a different system, no written Constitution, among other things. No King to threaten to appoint new peers."

                      The analogy is that you can use the rules of undemocratic systems to get democratic results. In fact: Republicans in the 1880s added states to get seats. Sure they didn't have the goal of Senate reform in mind. You CAN add new states until you force senate reform by amendment. You CAN expand courts so they don't stymie legislative majorities. Oh and BTW....Senators and legislatures who benefited from appointments also gave up that power with the 17th amendment.

                      And finally, as always, conceding that I might be insufferably arrogant it is a much better vice than your lack of moral principles and your constant cruelty. At least the arrogance is somewhat justified by being well educated and well read.

                2. Why do you want such complications. Introduce an amendment to abolish the Senate and see how far that gets.
                  Amazingly only one State has unicameral legislature.

      5. Why does that make it an absurd analogy? You seem to like one kind of diversity but not the other. Pointing out your hypocrisy was, in fact, the entire purpose of the analogy.

    2. Echo that this is an absurd analogy. Look up the concept of "representation."

      1. So why is the benefit of diverse representation politically distinct from the benefit of diverse representation academically, or judicially, or elsewhere?

    3. Ha Yea I hear that Wyoming comment all the time.

      But there is this thing called the constitution that allots two senate seats to each state.

      Doesn't say anything about diversity though

      1. The Constitution also allows admission of new states, enlargement of the House (with it, the Electoral College), and enlargement of the Supreme Court.

        How much longer do conservatives expect to be able to delay admission of Puerto Rico, the Douglass Commonwealth, and the Pacific Islands?

      2. Its always a GOP state, not Vermont or the other tiny New England states which send only Democrats [less one] to the Senate.

    4. "sneer at the value of racial diversity "

      A strawperson.

      The point is that discriminating on the basis of race is no way to achieve that goal.

      Affirmative action advocates never answer the key question: Why should the son of a black doctor get an advantage over the daughter of a white 7/11 worker?

      1. Hey Bob, don't slam Amos like that.

      2. That is the strawperson. The son of a black doctor doesn't get an advantage over the daughter of a white 7/11 worker. (Or even the son of a white 7/11 worker.) In Harvard admissions at least. (UNC, maybe, but I don't think you'll find diversity advocates defending that policy.)

        (I'm assuming you meant "diversity advocates" since that's what we're talking about and you surely wouldn't try to weasel in a change of subject in order to make an empty rhetorical point.)

  12. Just don't discriminate based on race. Easy

    Diversity is worthless. The best NHL teams and the best NBA teams are not diverse. It adds nothing

    1. The best way to address racial discrimination is to hold everyone to the same standards that work reasonably well for white people. What's the issue?

      1. You think the standards that the NBA uses work reasonably well for white people? Maybe in the 1970s.

  13. I agree that Grutter is a bit of a messy, political compromise, charting a path between an absolutist Equal Protection doctrine and a realistic appreciation of the problem of continuing, pernicious gaps of achievement between races in higher education.

    It's not wrong to want to fix that, but it is interesting to note that any "fix" that essentially outlaws consideration of race in administration wouldn't be very "originalist." The drafters of the Fourteenth Amendment anticipated that some kind of "reparations" and "affirmative action" would be necessary for the newly freed slave population - after all, the economic effects of centuries of slavery would have been immediately obvious to them. It is harder for us to see that, now; we have long since buried any memory of our slave-owning past, as an "aberration" from our animating ideals, and we're actively campaigning to make it illegal even to suggest otherwise. But it's curious how selective the "originalists" so often turn out to be, when it's their ox being gored, hm?

    1. Try to keep in mind that the drafters of the Fourteenth amendment WERE dealing with a newly freed slave population, not merely people who happened to resemble long dead slaves. This is kind of relevant.

      Treating people differently on the basis that they actually had been slaves is rather different from treating them differently on the basis that they have the same skin color that slaves had over a century ago.

      1. The problem is that the freedmen were abandoned by their governments and the white population did everything to ensure that the slaves' descendants were also kept down for the next 100 years.

        1. In some places, yes, and with variable success, and except for a few lingering remnants, (Like gun control laws.) Jim Crow has been gone for a couple generations now.

          Doesn't change the fact that it's absurd to compare discriminating on the basis of race today, with discriminating on the basis of actually having been a slave about a century and a half ago.

          1. Emmett Till is dead and Carolyn Bryant is healthy and alive.

            "The past is never dead. It's not even past."

            1. You can't reason with autistic bigots. We just have to continue arranging American progress over their objections, to listen to their whining, and to await their replacement.

              Time will sift this predictably and -- for those in the liberal-libertarian mainstream -- favorably.

              Clingers hardest hit.

            2. Whose fault is it that Carolyn Bryant (the Blasey Ford bitch of her generation) is still alive?

      2. This is where critical race theory comes in handy. Because we can, in fact, trace racial discrimination through slavery, through Jim Crow, through de facto practices that continue even after the civil rights era. Black Americans - of whatever lineage - were never brought to an equal footing with white Americans, and the practice of official "race-blindness" in the present day helps to retard their progress (alongside other forms of racial discrimination).

        Again, back then it was easy to see why Blacks were poor. They'd never been allowed to own property, run businesses, own themselves! Nowadays we write off Black poverty as a product of their own individual choices, while ignoring patterns of historical disinvestment in their communities and the ways that our criminal justice, welfare, schooling, and economic systems feed off and perpetuate those patterns.

        1. "Disinvestment in their communities?" Be more specific about what you mean by disinvestment. Many trillions of dollars have been "invested" in poor black communities since the advent of the not-so Great Society. It has made matters worse, not better.

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