April 22nd, 2014

Michigan’s anti-affirmative action law stands

SCOTUS has ruled 6-2 (Kagan abstaining) that Michigan’s law against race-based affirmative action is constitutional.

In other words, it’s not racial discrimination to ban the sort of racial discrimination that is supposedly designed for the purpose of redressing racial discrimination.

Mind-boggling that the question even comes up. As Justice Scalia, joined by Thomas, wrote:

It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law.

Justices Ginsburg and Sotomayor strongly disagree. Professor Jacobson writes at Legal Insurrection:

Here’s how Justice Sotomayor framed the issue: Taking away racially sensitive admissions uniquely harms those who benefit from that sensitivity…This is, as Kurt Schlichter calls it, essentially a ratchet theory, that no preference ever can be rolled back otherwise the rollback is discrimination.

I would add that Justices Sotomayor, Thomas, and Ginsburg all have personal experience with affirmative action, or lack thereof in Ginsburg’s case. Sotomayor and Thomas have acknowledged benefiting from affirmative action, although Thomas has indicated he felt it meant that people doubted his credentials for getting into law school. As for Ginsburg, who is older and went to law school before affirmative action existed, although her academic record was stellar she was discriminated against when she tried to get a job in law.

Thomas’ statements about his experience with affirmative action have been especially powerful:

When Thomas applied to Yale Law School, his race was taken into consideration. He wrote in his book, “I asked Yale to take that fact into account when I applied, not thinking that there might be anything wrong with doing so.”

But Thomas says that after he graduated from Yale, he went on several job interviews with “one high-priced lawyer” after another and the attorneys treated him dismissively. “Many asked pointed questions, unsubtly suggesting that they doubted I was as smart as my grades indicated.”

The fact that he couldn’t get a job would shape his thoughts on affirmative action programs for years to come. Thomas wrote, “Now I knew what a law degree from Yale was worth when it bore the taint of racial preference. I was humiliated—and desperate.”

In his interview with ABC News, Thomas said he was unable, even when he was nominated to the Supreme Court, to erase the stigmatizing effects of racial preference. “Once it is assumed that everything you do achieve is because of your race, there is no way out.” he said. “…it is irrebuttable and it is proved to be true. In everything now that someone like me does, there’s a backwash into your whole life is because of race.”

I am certainly not suggesting a one-on-one relationship between any of these justices’ positions on affirmative action and their own experiences with it; their viewpoints are in line with their general liberal/conservative orientation. But I do find their experiences interesting. My own personal reaction to affirmative action, back when I was a liberal Democrat and it first came into play, was antipathy on the order of “two wrongs cannot make a right.”

[NOTE: In reading the article about Ruth Bader Ginsburg's life, this caught my eye:

She credits another professor at Cornell, Vladimir Nabokov, with influencing her reading habits and writing style. “He loved words … the sound of words. … Even when I write an opinion, I will often read a sentence aloud and [ask,] ‘Can I say this in fewer words—can I write it so the meaning will come across with greater clarity?’”.

I can’t say I ever saw a connection between Ginsburg’s prose and Nabokov’s. Nabokov was a wonderful stylist, but he was certainly not known for saying things in “fewer words.”

Having read Nabokov’s beautifully controlled and atmospheric memoir Speak, Memory, I recall that his father, whom he highly respected and loved, was a well-known law expert in Russia before the revolution (and I see looking here that his grandfather was involved with law as well, as Justice Minister during the reign of Alexander II).

I don’t have Vladimir Nabokov’s memoir in front of me right now so I can’t quote it. But I remember that, in the wonderful chapter devoted to his father, he praised his father’s ability to write clearly and succinctly in first draft and compared it favorably to his own meanders and convoluted crossings-out while in the act of composition.]

11 Responses to “Michigan’s anti-affirmative action law stands”

  1. Paul in Boston Says:

    It’s strange but Jews and Italians couldn’t get jobs at major corporations, white shoe law firms, and any number of other businesses and universities prior to WWII. There were even quotas in place to keep them from being students at the Ivy League Universities. But somehow, through hard work and excellence at what they did they gradually became accepted at all levels of American life without any special favors. Impossible according to the liberals without government imposed quotas, er, affirmative action.

    Do the liberals ever notice that the same thing happened in major league sports with blacks? There was no affirmative action, they were the best and became sought after eventually opening the flood gates to near domination of sports by blacks. It even happened with college football in the deep South. Winning trumped color every time.

    If the do-gooders had concentrated on improving black education instead of forcing quotas to get a quick result so that they could feel morally superior, life would be better for everyone.

  2. Ann Says:

    I wonder what Nabokov would have made of this aspect of Justice Ginsburg’s writing style:

    The most consistent pattern in her writing is to assign particular generics to particular actors throughout all her opinions, most noticeably by using female pronouns to refer generically to judges and to plaintiffs in civil cases, and by using male pronouns to refer to criminal defendants and prisoners.

    He may have gotten a laugh out of it, since he did seem to enjoy “putting people on” in his own writing.

  3. Cornhead Says:

    Clarence Thomas was admitted into the Jesuit honorary society (Alpha Sigma Nu); the equivalent of Phi Beta Kappa. That is a big deal.

    Based upon his college and law school grades, he was qualified for any lawyer job after graduation.

    Affirmative action actually hurt Thomas.

  4. Mr. Frank Says:

    How strange. A state has to go to the Supreme Court to get permission not to discriminate on the basis of race. As Justice Roberts said, the way to get rid of racial discrimination is to quit discriminating on the basis of race.

  5. parker Says:

    This is a important victory… opening up a bottle of wine before dinner tonight.

  6. stu Says:

    Nabokov’s father was what we would call today an opinion columnist who wrote about legal matters amongst other issues. If you read the fascinating book “Child of Christian Blood” you will appreciate his influence on the literate in turn of the century Russia and the Ukraine.

  7. southpaw Says:

    There is/was a practice/law in the Texas university admissions where the top 10% GPAs of graduating students, from any high school, are/were granted automatic admission, and SAT scores are not considered. The intent was to open up the better schools to minorities with good GPAs and bad SATs, and improve “diversity”. I have lost track of the law that was introduced to repeal it and apologize for the vagueness here, but the important thing to note was that Universities who originally promoted the practice, went to the state legislature to repeal it. The reason the universities wanted to reverse the practice was that students from small, academically weak, and inner city schools predominantly made up of minorities were filling up the colleges, and failing in high percentages. Which proved the point that the good intentions did them a disservice, rather than helped. The failure rate of these students in the first semester was extremely high, and many never return to another college after getting blown out in their first year.
    Many minorities were promoted through high schools by teachers who were aware of the opportunity to get their students into the best colleges using this exception, and the teachers had not prepared them to succeed in a at UT, A &M, etc. And many good students in highly competitive high schools were being boxed out.
    One would think that before enacting this kind of policy, highly educated college board members could envision such a result, but the alter of political correctness where they worship demands they sacrifice a great deal of integrity and common sense.

  8. Bob Kantor Says:

    Here is the marvelous opening paragraph of Nabokov’s “Speak Memory.”

    “The cradle rocks above an abyss, and common sense tells us that our existence is but a brief crack of light between two eternities of darkness. Although the two are identical twins, man, as a rule, views the prenatal abyss with more calm than the one he is heading for (at some forty-five hundred heartbeats an hour). I know, however, of a young chronophobiac who experienced something like panic when looking for the first time at homemade movies that had been taken a few weeks before his birth. He saw a world that was practically unchanged – the same house, the same people – and then realized that he did not exist at all and that nobody mourned his absence. He caught a glimpse of his mother waving from an upstairs window, and that unfamiliar gesture disturbed him, as if it were some mysterious farewell. But what particularly frightened him was the sight of a brand-new baby carriage standing there on the porch, with the smug, encroaching air of a coffin; even that was empty, as if, in the reverse course of events, his very bones had disintegrated.”

  9. Minta Marie Morze Says:

    Neo, Bob Kantor, Thank you! I had no idea. I’ll look up the book.

    Apropos of the blog post, just think of how many kids—of every race—are never taught to read well, or to evaluate what they read, and who miss out on so much that is truly excellent and fascinating in the world. They walk through a wonderland of possibilities, and the curricula that could have given them the capability of enthusiastically accessing and embracing that world is, deliberately, no longer being taught.

    What is not valued is not perpetuated.

  10. neo-neocon Says:

    Minta Marie Morze:

    Yes, it is a very rewarding book, although not easy reading. It is so beautifully written, and so evocative of an era gone by.

    The chapter about Nabokov’s father is probably my favorite, but I love most of the book.

  11. Richard Saunders Says:

    What’s really sad about this is that the black “leadership” will fight to the death to keep black children in lousy schools.

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