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SCOTUS Issues Narrow Decision on Affirmative Action
June 24, 2013 8:14 AM   Subscribe

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. The Supreme Court issued a decision[pdf] in the affirmative action case Fisher v. University of Texas at Austin today.

The decision was 7-1, with Kennedy writing for the majority, Scalia and Thomas each writing separate concurring opinions, Ginsburg dissenting, and Kagan recused.

Kennedy for the majority:
a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element."

Scalia, concurring:
The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

Thomas, concurring:
I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003), and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.

Ginsburg, dissenting:
the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus. . . . and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives
posted by insectosaurus (92 comments total) 10 users marked this as a favorite

 
One of these days, Thomas is just going to come out and admit that he thinks that Jim Crow was just fine and dandy.
posted by goethean at 8:16 AM on June 24, 2013 [6 favorites]


You missed the best part of Ginsberg's dissent!
"Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious."
LIKE A BOSS.
posted by Pope Guilty at 8:25 AM on June 24, 2013 [40 favorites]


I sure wish someone would apply strict scrutiny to MY rights. *pout*
posted by jph at 8:25 AM on June 24, 2013


Justice Thomas, in his concurrence in Fisher, section B.1 (page 2 of the concurrence, page 19 of the opinion PDF), cites Korematsu for establishing the strict scrutiny standard -- saying, "the Court recognized that protecting national security may satisfy this exacting standard". The lack of context is really depressing, and my first reaction upon reading that was, "You've got to be kidding me."

(Korematsu was the opinion in WWII in which the Supremes approved the establishment of Japanese internment camps, after the government's gross generalizations about Japanese Americans, such as that they were disloyal and motivated by “racial solidarity.” Because, you know, "national security" and all.)

The notion that Justice Thomas approves of the "national security" result in Korematsu is really, really distressing. His concurrence in Fisher is that racial discrimination of ANY TYPE is always, always bad. But, he uses Korematsu as an example of when it might be justified -- he calls it an example of "compelling interests that may, in a narrow set of circumstances, justify racial discrimination."

The Justice Department confessed error in 2011, saying, "those decisions still stand today as a reminder of the mistakes of that era." And Justice Thomas' offhand citation to Korematsu without acknowledging that is sad.

And the notion that Justice Thomas might be receptive to a "round up all the Muslims" argument based on national security...words fail me.

Now, I could see Thomas citing Korematsu as an example of how even race-based discrimination that some thing passes strict scrutiny could still be a Bad Thing. But that's not what he does. I don't think this is some crazy strict scrutiny jiu-jitsu. I think he was citing Korematsu unironically.
posted by QuantumMeruit at 8:26 AM on June 24, 2013 [34 favorites]


Yeah. It's far from unheard-of for Korematsu to be cited, but normally because it set up such a high barrier to entry that it has served as a good and handy (if ironic) gatekeeper ever since the end of internment camps.

Which is sort of what Thomas is using it for, but in a disturbing and perverse way.
posted by Navelgazer at 8:29 AM on June 24, 2013


As Court Punts, Thomas Compares Arguments for Affirmative Action to Those for Slavery
In the moments after the decision was released, legal experts disagreed on how much impact it could have on the use of affirmative action at both public and private universities and colleges (though the case only directly applied to public institutions). But just as important, the court bypassed the opportunity to reverse previous rulings and eviscerate affirmative action.

That means it was a bad day for Justice Clarence Thomas. As he notes in a concurring opinion (that reads like a dissent), he wanted the court to "hold that a State's use of race in higher education admissions is categorically prohibited by the Equal Protection Clause." Thomas' decision was longer than that of the majority opinion written by Justice Anthony Kennedy. He compared the arguments in favor of affirmative action to those used to support segregation in years bygone, calling them "virtually identical" to the contentions the court rejected to undo segregation. He declared, "the use of race has little to do with the alleged educational benefits of diversity." And he went as far as you would expect, noting that "Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life." Yes, Thomas compared the justification of affirmative action to the justification for slavery. And he asserted that affirmative action harms white and Asian-American students denied admission but actually causes more harm to those admitted under such programs: "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates."

Thomas' opinion was a cry of the heart against affirmative action—and a cry of frustration. Juxtaposed against such an extreme rant, the majority opinion looked rather moderate.
posted by zombieflanders at 8:30 AM on June 24, 2013 [3 favorites]


One of these days, Thomas is just going to come out and admit that he thinks that Jim Crow was just fine and dandy.

That's an odd thing to say given that Thomas is arguing that formal racial discrimination is almost never justified.
posted by BobbyVan at 8:30 AM on June 24, 2013 [11 favorites]


Not a lot to see here, thank goodness.
posted by roomthreeseventeen at 8:32 AM on June 24, 2013 [2 favorites]


Yeah. Unless you want to put people in concentration camps for national security reasons. Then it's fine.
posted by 1adam12 at 8:32 AM on June 24, 2013 [6 favorites]


Poor poor Justice Thomas, so obviously a success on the basis of his singular merit, unlike all those other African American justices on the court.

Sigh of relief for this higher educator, anyway.
posted by spitbull at 8:35 AM on June 24, 2013 [1 favorite]


Well.... Not nearly as horrid as it could be/or expected to be. So, yay? I guess
posted by edgeways at 8:40 AM on June 24, 2013


Oh, also, the case now, as I understand it, goes back to the Fifth Circuit, who are instructed to apply strict scrutiny, and then could come to the same conclusion, which could bring it back to SCOTUS for a review on the merits. Fun times!
posted by Navelgazer at 8:42 AM on June 24, 2013


It should be noted that (like last week), today was a Very Bad Day for employees and consumers. Especially bad was Vance v. Ball State, where the ruling made it appallingly difficult for employees to bring discrimination suits, but UT Southwestern v. Nassar wasn't much better, as it makes it easier to get rid of "troublesome" employees because of prior discrimination complaints. SCOTUS is repealing vast parts of Title VII here. And with Mutual Pharma v. Bartlett, they made it much more difficult if not impossible for people harmed by generics to sue pharmaceuitcal companies.

All three were 5-4 along ideological lines.
posted by zombieflanders at 8:48 AM on June 24, 2013 [16 favorites]


A lot of folks are saying that it's going to be pretty hard for a college program to pass strict scrutiny. I suspect that the liberals not having Justice Kagan and Scalia wanting to stick to the narrow ruling (since the relief requested didn't include overruling Grutter) -- might have driven the decision to punt.

I'm not sure the tea leaves look good (with the current SCOTUS composition) for when it comes up next.
posted by QuantumMeruit at 8:50 AM on June 24, 2013


I agree with Justice Thomas's concurring opinion in full. Racial affirmative action seriously harms blacks and Hispanics.

The above comments don't give a fair representation of what Thomas said. I recommend reading the whole thing.
posted by John Cohen at 8:52 AM on June 24, 2013 [2 favorites]


Also, in their march to towards bending towards the worst of the anti-choice movement, they'll be hearing the abortion clinic "buffer zone" case next session, as well as the recess appointments case (which I'm sure "strict Constitutional originalist" Scalia will tie himself in rhetorical knots over).
posted by zombieflanders at 8:53 AM on June 24, 2013


I am relieved and, frankly, surprised that this is the way the opinion came out. But I am also rather surprised that no one mentioned the standing issue in the case (ie: how does Abigail Fisher, a white woman who didn't get into the college of her choice, have an injury in fact caused by affirmative action under a holistic admissions program?). There were a few questions by Sotomayor and Ginsburg during oral argument and I expected a least a nod to it or a concurring opinion.
posted by likeatoaster at 8:53 AM on June 24, 2013 [1 favorite]


People are missing the point of Thomas's appropriate cite to Korematsu. If Korematsu was wrongly decided, that strengthens Thomas's argument!
posted by John Cohen at 8:57 AM on June 24, 2013 [1 favorite]


His concurrence in Fisher is that racial discrimination of ANY TYPE is always, always bad. But, he uses Korematsu as an example of when it might be justified

Except he doesn't say of "ANY TYPE is always, always bad", he says national security interests are held as an area where they may be constitutional. I disgree with this (and almost every other opinion he issues), but he's neither being inconsistent or glossing over Korematsu.
posted by spaltavian at 8:58 AM on June 24, 2013 [2 favorites]


Poor poor Justice Thomas, so obviously a success on the basis of his singular merit, unlike all those other African American justices on the court.

Not sure if this comment is just dumb or playing right into Thomas' line of writings in the affirmative action cases--for example, pp. 19 and 20 of his concurrence today.
posted by resurrexit at 9:01 AM on June 24, 2013 [2 favorites]


if you can't be sure about it, sarcasm is always a third option.
posted by mephron at 9:04 AM on June 24, 2013 [3 favorites]


I think he's using Korematsu as a rhetorical device--i.e., he's saying that whatever claims to diversity the University is making do not amount to national security threats, and at the same time is using one of the shittiest possible episodes of state-sanctioned racial classifications in modern history as a way of saying, oh, here's some racial classification, in the event you're inclined.

Thomas is the least likely of any justice to agree with Korematsu's principle.
posted by resurrexit at 9:04 AM on June 24, 2013 [4 favorites]


Not everything you learned in kindergarten was true. Sometimes, two wrongs make a right.
posted by prefpara at 9:05 AM on June 24, 2013 [2 favorites]


Hip, ironic racism is still something something.
posted by resurrexit at 9:05 AM on June 24, 2013 [2 favorites]


I agree with Justice Thomas's concurring opinion in full. Racial affirmative action seriously harms blacks and Hispanics.

There's arguments to be made that AA is an imperfect solution to a problem, but the only other option is to pretend institutional racism doesn't exist and isn't orders of magnitude more harmful (SPOILER: It very much does and is) and offer alternatives that are not neutral. The only recourse to fix the problem is to depend on Congress to do it, which is unlikely seeing as how almost an entire elected political party is only implicitly racist on a good day, and is almost guaranteed through 2020 to hold a majority in one chamber and block legislation in the other.
posted by zombieflanders at 9:25 AM on June 24, 2013 [11 favorites]


What is most interesting to me is with such a fair-minded decision today, maybe we will get a similarly good one in Shelby County.
posted by roomthreeseventeen at 9:31 AM on June 24, 2013


The opinion is short and, well, pretty good.

The lower court decision deferred way too much to the University's claims about what it was doing.

The Supreme Court's opinion basically was "yeah, don't ever just blindly trust someone who says their racial-classification scheme is OK".

So it goes back to the lower court, and they get instructed to actually make sure that the University's affirmative-action program meets the requirements of strict scrutiny, which get applied any time you're classifying people for possibly different treatment based on race.
posted by ubernostrum at 9:33 AM on June 24, 2013 [2 favorites]


Also re: the "harm" of AA:

As Supreme Court Prepares To Rule on Affirmative Action, Whites Are Still Twice As Likely To Enroll In College (emphasis in original)
The legality of race-conscious admissions policies to achieve educational diversity was affirmed by the Supreme Court in the last major case upholding the constitutionality of affirmative action, Grutter v. Bollinger (2003), with the majority opinion emphasizing that “student body diversity” is a compelling state interest. A decade later, a court with a different ideological divide appears likely to roll back this principle, in spite of continued severe disparities in education:

* Whites are at least twice as likely to enroll in college (36%) as Blacks (18%), Latinos (12%), and American-Indians (10%).

* Nearly 65% of black adults and 80% of Latino adults fail to complete some form of post-secondary education, according to recent Census estimates. In contrast, 50% of the white population has at least an Associate’s degree or a Bachelor’s degree.

* After residents of California abolished affirmative action in university admissions, the number of Black and Hispanic first-year students at the University of California-Berkeley declined by 52% in just the first year (1997). The overall minority declines in minority enrollment were the steepest at the flagship campuses of Berkeley and Los Angeles, which have also been among the slowest to recover their shares of underrepresented minority students. This statistic offers a glimpse into how campus diversity may be impacted by an adverse court decision.
posted by zombieflanders at 9:39 AM on June 24, 2013 [1 favorite]


Racial affirmative action seriously harms blacks and Hispanics.

Come back in 50 years and lets see if it's true then, because it only approaches more harm then good when we have a much more equal distribution of folks in positions of power and influence, and generally to get to that point you need increased education.

Unless one is willing to state that we are approaching parity or can offer something other then the Libertarian argument du jour I don't understand the argument against it and I'm not sure what one could replace AA with that would be oh so much better.
posted by edgeways at 9:46 AM on June 24, 2013 [6 favorites]


Yeah I'm way more put off by the employment cases today. This sketchy nonsense where someone isn't a supervisor unless they have more concrete input on employment just flies in the face of employment reality. Where's the line drawn here? We're not going to say that someone who just gets verbal input on someone's advancement/review could be part of a systemic discrimination process?
posted by phearlez at 9:47 AM on June 24, 2013 [2 favorites]


It's nice that only admissions policies that promote racial diversity have to survive "strict scrutiny" ala Grutter etc. or else it would be open season for lawsuits for anyone with a rejection letter. Every conceivable admissions requirement is going to violate racial neutrality: legacy! GPA! sports!

Or maybe you could just give preference to candidates with ancestors who may have been slaves, or were exterminated as vermin, etc. Surely that wouldn't mention race at all?
posted by ennui.bz at 9:50 AM on June 24, 2013


Unless one is willing to state that we are approaching parity or can offer something other then the Libertarian argument du jour I don't understand the argument against it

Thomas addresses this argument directly beginning on page 17 of his concurrence (page 34 of this document).
posted by BobbyVan at 9:52 AM on June 24, 2013


It should be noted that (like last week), today was a Very Bad Day for employees and consumers. Especially bad was Vance v. Ball State, where the ruling made it appallingly difficult for employees to bring discrimination suits, but UT Southwestern v. Nassar wasn't much better, as it makes it easier to get rid of "troublesome" employees because of prior discrimination complaints. SCOTUS is repealing vast parts of Title VII here.

From Ginsburg's dissent:
Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.
In other words, "These asshats I'm forced to work with are fucking up your shittily written laws; please unfuck them before I have to slap the stupid right out of Roberts et al."
posted by Etrigan at 9:54 AM on June 24, 2013 [14 favorites]


I think this was a bad decision. Strict scrutiny is not the ideal standard for affirmative action or other benign race based classifications - I think it should be intermediate scrutiny at most. I also find it disappointing that diversity is the only acceptable compelling reason for affirmative action - sure, diversity is good, but trying to offset (to some degree) the effects of past and current institutional racism is hugely important.

The decision is better than I expected, and I'm relieved, but I do not think it is good or right.
posted by insectosaurus at 9:57 AM on June 24, 2013 [1 favorite]


Can someone explain to me in Captain Dummy Talk what UT Southwest v. Nassar did? Did they basically say that in order for employers to be sued for firing someone who complains about discriminatory practices, the ex-employee has to prove that the discrimination was the only reason they were fired?

I am so bad at reading legalese.
posted by WidgetAlley at 10:00 AM on June 24, 2013


I pulled the ladder up after me, and I am NOT sliding it back down!
posted by Benny Andajetz at 10:01 AM on June 24, 2013 [3 favorites]


I'm really not sure I'd want the court to start making the call between what kind of discrimination is "benign" or not.

I think the decision punted because the decision had to punt.
posted by Navelgazer at 10:01 AM on June 24, 2013 [3 favorites]


Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII.... The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.

Except the current House would probably produce a "correction" that mandated reparations for men harmed by sexual harassment suits and instituted a national slap-your-secretary-on-the-ass-day so...
posted by ennui.bz at 10:03 AM on June 24, 2013


Today Among People Who Wear Robes
posted by homunculus at 10:05 AM on June 24, 2013 [1 favorite]


Can someone explain to me in Captain Dummy Talk what UT Southwest v. Nassar did? Did they basically say that in order for employers to be sued for firing someone who complains about discriminatory practices, the ex-employee has to prove that the discrimination was the only reason they were fired?

from scotusblog:
Title VII has been characterized by a back-and-forth between the Court and Congress, with Congress overruling a number of the Court’s restrictive interpretations of the statute in the past. One such decision was an opinion from the Court that construed Title VII to require employees to prove that the discrimination was the so-called “but for” cause of the employee’s termination, failure to be hired, etc. As a result, even if the employer admitted that race was one of the reasons for refusing to hire the worker, the worker could still lose if the jury believed that the employer would not have hired the worker anyway. Congress reacted to this ruling in 1991 by amending the law to say that all the worker has to show is that discrimination was a “motivating factor” in the employment decision; if so, the worker wins the case, but the employer can avoid having to pay damages if it can show that it would have taken the same action anyway.

The question in Nassar was whether this provision also applies to claims of retaliation. The Supreme Court held that it does not. Writing for a five-Justice majority, Justice Kennedy explained that the “motivating factor” provision only applies to claims of “discrimination” — which, in this context, means only claims of discrimination based on (for example) race, sex, and religion, rather than retaliation. The decision is based on a close parsing of the statutory text and structure.
As I read it, the court decided that, even though congress amended the language with respect to hiring and firing based on racial discrimination to correct a court decision which effectively made Title VII meaningless wrt to hiring/firing (because all the employer would have to show is that there were reasons other than race for the hiring/firing), that same reading of the language of the statute should apply to cases of "retaliation" based on race.

So, as long as you can show that you had other reasons to act adversely against lazy arabs, you're OK with the courts.
posted by ennui.bz at 10:12 AM on June 24, 2013 [2 favorites]


Scott Lemieux:

"In light of the fact of his concurrence today arguing that affirmative action is the precise constitutional equivalent of Jim Crow, Clarence Thomas has done the only possible honorable thing and submitted his resignation. After all, when George H. W. Bush took race into account when nominating Thomas according to Thomas’s own logic this was just as bad as if he believed that no African-Americans can serve on the Court, so really Thomas had no choice."
posted by MisantropicPainforest at 10:39 AM on June 24, 2013


Out of morbid/left-field-conspiracy/curiosity... wouldn't any supervisor that has the ability to reprimand any employee also have the de facto ability to fire them? For example, if a manager writes up an employee three times and the company has a three strikes type of policy, doesn't that mean that the supervisor has essentially fired that person?

Or have I strayed too far out of the box already?
posted by Blue_Villain at 10:53 AM on June 24, 2013 [1 favorite]


Out of morbid/left-field-conspiracy/curiosity... wouldn't any supervisor that has the ability to reprimand any employee also have the de facto ability to fire them? For example, if a manager writes up an employee three times and the company has a three strikes type of policy, doesn't that mean that the supervisor has essentially fired that person?

In your example, yes. But there are a lot of supervisors out there who don't have that power and who work at companies that don't have such automatic policies. For instance, if the policy is that three write-ups means the employee's file goes to another office that determines whether the employee will be fired, then that supervisor doesn't technically have any firing power, unless you can prove that the second office always ends up firing people with three write-ups.
posted by Etrigan at 10:57 AM on June 24, 2013


Re: supervisors out there who don't have that power and who work at companies that don't have such automatic policies.

Then I'm assuming that this is what would be addresseed in the strict scrutiny phase then?

I guess that's a sh^tty decision that's only slightly less sh^tty than what's already in place then.
posted by Blue_Villain at 11:02 AM on June 24, 2013


That quote from this Lemieux person is perplexing. It appears to be a critique of those who would weaken affirmative action jurisprudence, but carries out its critique by being racist. This person is literally saying that Justice Clarence Thomas is only on the Supreme Court of the United States because he is black and, barring that, is otherwise unqualified to serve. Or is the only "good black" Justice a reliably liberal one? Was Thurgood Marshall only on the Court because he was black?

Thomas has written--probably a dozen times now--that this is the worst consequence of affirmative action: every person of color cannot just be a good enough person to do a certain job or get into a certain school, they are assumed to be only a good enough person of a desired color. Shameful.
posted by resurrexit at 11:05 AM on June 24, 2013 [5 favorites]


(Blue_Villain, you can say "shitty" here if you want.)
posted by benito.strauss at 11:06 AM on June 24, 2013


(I know, but it's counter-intuitive to use the "real" words when it's damning praise.)
posted by Blue_Villain at 11:07 AM on June 24, 2013


There's a "heads I win tails you lose" quality to this sort of argument, resurrexit. A successful white person obviously can't oppose affirmative action because he or she is (unconsciously, no doubt) the beneficiary of "white privilege." Conversely, a successful black person can't oppose it because he or she would be "pulling up the ladder behind them."
posted by BobbyVan at 11:09 AM on June 24, 2013 [3 favorites]


But there is such a thing as white privilege. And there is such a thing as discrimination. Do appearances preclude any attempt to rectify the situation? Is it better to do nothing? Surely that's just as bad.
posted by Benny Andajetz at 11:53 AM on June 24, 2013


That quote from this Lemieux person is perplexing. It appears to be a critique of those who would weaken affirmative action jurisprudence, but carries out its critique by being racist. This person is literally saying that Justice Clarence Thomas is only on the Supreme Court of the United States because he is black and, barring that, is otherwise unqualified to serve.

Where does it say that? The only part mentioning race say that "George H. W. Bush took race into account when nominating Thomas," which is undeniably true, according to his political strategist team. At not point does Lemieux say that Thomas is only a Justice because he is black.

Thomas has written--probably a dozen times now--that this is the worst consequence of affirmative action: every person of color cannot just be a good enough person to do a certain job or get into a certain school, they are assumed to be only a good enough person of a desired color. Shameful.

This would be "shameful" in a country that had no history, let alone ongoing instances, of institutional racism. Sadly, that is not the case now, nor has it ever been.

A successful white person obviously can't oppose affirmative action because he or she is (unconsciously, no doubt) the beneficiary of "white privilege." Conversely, a successful black person can't oppose it because he or she would be "pulling up the ladder behind them."

Well, apart from the fact that white people, without a doubt, do have privilege, sometimes enormously so (this is pointed out above), there is some question to Thomas' motive. In the past he has mentioned that Yale's AA policy "cheapened" his law degree, for instance, yet says nothing of the decades of actual quantifiable anti-minority stances from before cheapening the law degrees of whites who attended.

I mean, if you've got empirical evidence that neither "white privilege" or institutional racism exist, or if you've got actual proposed alternatives that aren't actually worse, you're free to provide it here. The fact that neither white nor minority opponents of AA have yet managed to do so indicates that the "privilege" and "ladder" arguments have quite a bit of merit.
posted by zombieflanders at 12:14 PM on June 24, 2013 [4 favorites]


BTW, this is what Ginsberg means when she said this in her dissent:
I have several times explained why government actors, including state universities, need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.' Among constitutionally permissible options, I remain convinced, 'those that candidly disclose their consideration of race [are] preferable to those that conceal it.' Accordingly, I would not return this case for a second look.
posted by zombieflanders at 12:21 PM on June 24, 2013


Nassar was a truly horrible opinion. The case should never have been heard, but, failing that, the Court should have resisted drawing new contours and making a giant mess of Title VII. The Legislature has been exceedingly clear about Title VII and yet it just got walked back.

This overall was a weak day for the Court. They played games with a constitutional decision (Fisher) and then entered the weeds on statutory construction cases (Nassar chiefly) that results in a more convoluted and diminished statutory scheme. But ultimately, Fisher will be back. Nassar will be retried and may be back. The Court did not give ultimate answers. Granted, they should narrowly craft their opinions to the issues presented and not decide matters unless they are necessary. But going the other route and creating matters for future litigation isn't any better.

It was an especially bad day for the Fifth Circuit that got reversed on Fisher, Nassar and the SORNA case (3 of the 5 cases today). And the Solicitor General had a bad day as well.

I am not looking forward to Wednesday which is when the VRA and DOMA cases come out. Another bad day like today and it will be a real mess.
posted by dios at 12:35 PM on June 24, 2013


Nassar was a truly horrible opinion. The case should never have been heard, but, failing that, the Court should have resisted drawing new contours and making a giant mess of Title VII. The Legislature has been exceedingly clear about Title VII and yet it just got walked back.

But didn't they do just what a conservative court is supposed to do: make a decision based on a close-reading of the statutory language as given without offering interpretations of the intent of congress?
posted by ennui.bz at 12:49 PM on June 24, 2013


I disagree with Thomas' position on AA, just as I disagree with many of his other positions, but many of the attacks on him and this particular concurrence are varying mixtures of silly, incoherent, and offensive.

Citing Korematsu was accurate and on-point. It's actually a clever little trap: as John Cohen aptly points out upthread, the more you disagree with Korematsu, the more you accidentally bolster his argument. Besides, Korematsu is still technically "good law", as far as precedent goes: the DOJ cannot go over the Supremes' heads to overturn case law by fiat.

"HAW HAW THOMAS OWES HIS CAREER TO AFFIRMATIVE ACTION" is an atrocious argument. One, this is yet another statement which only bolster's Thomas' previously stated points. Besides, I was under the impression that "so-and-so was only hired because of AA!" was a generally reprehensible utterance. Two, this argument is an especially pitiful ad hominem, of the tu quoque variety. Three, there is a racist stench hanging off of this remark; it's the same stench that hangs over when people claim that Thomas is Scalia's lapdog. Notice how no one ever accuses Scalia of being Thomas' lapdog, nor Ginsburg of being Breyer's lapdog, nor Breyer of being Ginsburg's lapdog. This is especially disconcerting when you consider that one of Thomas' chief jurisprudential characteristics is how quixotic he is, especially when it comes to respecting stare decisis.

...

But didn't they do just what a conservative court is supposed to do: make a decision based on a close-reading of the statutory language as given without offering interpretations of the intent of congress?

I'm going to wiggle in here and point out that originalism is younger and smaller than conservatism.
posted by Sticherbeast at 1:10 PM on June 24, 2013 [8 favorites]


But didn't they do just what a conservative court is supposed to do: make a decision based on a close-reading of the statutory language as given without offering interpretations of the intent of congress?
posted by ennui.bz at 2:49 PM on June 24


Was this a rhetorical question? I just called the opinion "truly horrible", so that's an odd question to ask me. But to clarify, it is horrible for the very reason that it misreads the text and fails at statutory construction to treat the text as a whole. It creates an artificial distinction between discrimination and retaliation that is not supported by the text (or the Court's own precedent). There are all kinds of canons of statutory construction, and they can lead to different results. Here the greater weight of the canons would suggest that the Fifth Circuit's ruling was correct (and in line with the majority of circuits who had addressed this issue). The problem here is that you have an incredibly poorly written statute that left a hole. Reading the statute as a whole to fill in the hole, Nassar won. UTSW only won by assuming that the hole was an intentional effort to create an exception not present from a plain reading of the statute, the legislative history, or the precedent.
posted by dios at 1:16 PM on June 24, 2013


Oh, and I am going to echo the comments above about the comments about Thomas in this instance. The first comment in this thread was an ignorant and uninformed-by-the-post derail that should have been axed by the mods. Usually when someone doesn't bother to read the post and just offers derailing and inflammatory snark, it gets axed. But that first comment is not the only one (here or elsewhere).

There can be no doubt about Thomas' sincerity in his opposition to racial discrimination. The guy is tirelessly consistent and absolutist in his position on this point. He is to racial discrimination what Hugo Black was to the First Amendment. Moreover, it is obvious that many of the people snarking about Thomas' view do so because he is black and one can sense it is is not far removed from using a racial epithet like calling him an "Uncle Tom". This is repellent in general and depressingly ironic in this instance. Same with the misreading of his reference to Korematsu.

Disagree with his principled reading of the Fourteenth Amendment. That's fine. He ably supports his position with the text and caselaw; one can disagree using the same. But don't question his motivations and make insinuations about how his race factors into it or should factor into it. If his race in any way factors in how you evaluate his opinions, that says more about you than him.
posted by dios at 1:32 PM on June 24, 2013 [4 favorites]


I am not looking forward to Wednesday which is when the VRA and DOMA cases come out. Another bad day like today and it will be a real mess.

I think you're right that they'll be released Wednesday (or Thursday if they for some reason were to skip Wednesday and announce they'll be back on Thursday) but in theory those decisions could be returned tomorrow. The only reason we're assuming they'll be back at all after tomorrow is that traditionally the Chief makes a statement at the penultimate session and he didn't today. If Roberts decides he wants to go all crazy-woo and diverge from tradition I don't think they HAVE to be back again after tomorrow if they were to release all their cases.

There can be no doubt about Thomas' sincerity in his opposition to racial discrimination. The guy is tirelessly consistent and absolutist in his position on this point. He is to racial discrimination what Hugo Black was to the First Amendment. Moreover, it is obvious that many of the people snarking about Thomas' view do so because he is black and one can sense it is is not far removed from using a racial epithet like calling him an "Uncle Tom".

Oh that's horsehockey. I don't doubt Thomas' sincerity one bit but that doesn't mean I can't similarly think he's a jackass for it. It's not racist to think that someone in certain circumstances should, given their position and life experiences/placements, be more sensitive to certain realities. I am not ableist when I get angry that someone who requires crutches is dismissive of the needs of someone confined to a wheelchair. I am not homophobic when I think that someone who is able to be gay and out in a big city while being well-off should be more sensitive to the realities of gay folks in smaller/more rural/whatever locations. I am not misogynist when I think that powerful women should be more mindful of the challenges of other women.

Using weasel words like "not far removed" so you can imply nuh-oh THOSE people who are so strident about equality and equity programs are the real racists is garbage.
posted by phearlez at 1:58 PM on June 24, 2013 [7 favorites]


I don't doubt Thomas' sincerity one bit but that doesn't mean I can't similarly think he's a jackass for it.

Sure, you can think he is a jackass. Like I said, feel free to disagree with him on principled grounds. You can believe you are right and he is wholly wrong. I don't begrudge that at all. But one doesn't have to read much (including this thread) before one encounters frequent comments implying Thomas hates black people (see the first comment in this thread!), does not care about them, or is a lackey for white people. This is the frequent Uncle Tom type argument. Surely you do not deny that type of argument is noticeable in such discussions?

It's not racist to think that someone in certain circumstances should, given their position and life experiences/placements, be more sensitive to certain realities.

I never said it was racist. What I said was it is repellent, and it is if you imply that you know better than Justice Thomas what his "certain circumstances", his "position" and his "life experiences/placements" should obligate him to think--and you claim you can make that determination solely because you know he is black. That is repellent, in my opinion. I also wonder how much you think you know about the guy given your analogies, which do not hold up. Each of them applies that a member of a class does not feel for the other members of a class, so for the analogy to hold, you would have to be saying that Thomas does not feel for black people. How does one arrive at that conclusion from his absolutist opinion that all discrimination is bad? Your crutches to wheelchair argument is particularly odd; do you think Thomas has had an easy life, born with a silver spoon in his hand such that his race is but a minor infirmity compared to the real infirmity facing other black people? Is that your point? If so, you might want to learn a bit more about the man.

Here you have a guy who has very clearly said that based on this life experiences and understanding the law, any and all discrimination is wrong. Why is he a jackass for thinking that? Because he is objectively wrong? Or because of assumptions you make about what he should think based on the color of his skin? If it is the latter, I stand by my opinion.

Hate the guy's jurisprudence. It is defined enough that there are robust grounds to attack his ideology. But using his race as grounds to criticize his opinion in this case is repellent and wholly ironic given that his point is that we should judge people only their merits and not their race.
posted by dios at 2:34 PM on June 24, 2013 [2 favorites]


I never said it was racist.

Stating that someone is calling someone an Uncle Tom, no matter how much you load up with chickenshit weasel words, is exactly calling it racist.
posted by phearlez at 3:04 PM on June 24, 2013 [3 favorites]


Ok, I think we just have different definitions of the word. Call it whatever you like; I think I explained it. I stand by my point which should be addressed on its merits and not discounted by you placing a label on it using your own definitions.
posted by dios at 3:32 PM on June 24, 2013


This essay by Shelby Steele, written in 1999, is particularly relevant today. You don't have to agree with it, but you should at least consider it.
posted by Seymour Zamboni at 4:01 PM on June 24, 2013


The main criticism in this thread appears to be that Thomas's position suggests he thinks state-sponsored discrimination (privileging the college applications of minority students) is categorically worse than private discrimination (the blatant inequity in college access for minority students). That his position is logically-sound does not make it less shitty.

The other criticism (that phearlez is making) is to suggest that his being a member of a historically-marginalized minority group who has likely benefited from policies intended to reduce racial disparities in positions of power (e.g. college degree-holders, Supreme Court Justices) makes it surprising that he opposes those policies as a matter of course. Most people living in America recognize that race plays a role in mediating interactions between people. Thomas suggests that the government has no role to play in ameliorating racial inequality; Congress and many Americans disagree. This is not the same as calling someone an Uncle Tom and I think it's extremely disingenuous of you to say so.
posted by MetalFingerz at 4:53 PM on June 24, 2013 [1 favorite]


The notion that Justice Thomas approves of the "national security" result in Korematsu is really, really distressing.

Look, I'm no fan of Thomas, but I don't think he was endorsing internment camps -- at least not any more than the sitting Court did back then. He was referring to the strict scrutiny standard, which is in arguably bound up with the Korematsu decision whether you like how the test was used there or not. Extrapolating from this to "round up the Muslims" or "Jim Crow" is just ridiculous, because strict scrutiny is used in many, many constitutional arguments across the spectrum.

It is tough, but I think necessary, to follow constitutional arguments with some eye to the perversity of the law. The decision doesn't say that internment was politically or morally correct (well, it might, but I'm getting at what it meant judicially); it says that strict scrutiny requires we look at questions like this with a very keen eye. None of that says there aren't other tests which, today, internment would not pass. But part of what the court was saying was that internment was a political decision that, abhorrent as it may be, wasn't unconstitutional. This is sort of where we are with affirmative action.
posted by dhartung at 5:40 PM on June 24, 2013


Ok, I think we just have different definitions of the word. Call it whatever you like;

In case you forgot what you said all of two hours prior:

Moreover, it is obvious that many of the people snarking about Thomas' view do so because he is black [emphasis yours] and one can sense it is is not far removed from using a racial epithet like calling him an "Uncle Tom". This is repellent in general and depressingly ironic [emphasis mine] in this instance.

I am sorry if you are so disconnected from your own words that you do not get what you're saying, but let me help you for future purposes. You are calling those people racists. It is why you made a parallel between their statements and the inflammatory phrase "Uncle Tom" and then called it ironic. That is indeed calling it whatever I like, as well as what it's called by all the rest of the thinking universe who isn't trying to sleazily backpedal away from their assertions.
posted by phearlez at 7:58 PM on June 24, 2013 [2 favorites]


The other criticism (that phearlez is making) is to suggest that his being a member of a historically-marginalized minority group who has likely benefited from policies intended to reduce racial disparities in positions of power (e.g. college degree-holders, Supreme Court Justices) makes it surprising that he opposes those policies as a matter of course.

I wouldn't say that's a criticism I am making but I think others have and - whether it's a criticism with merit or not - I don't think it's racism to pen that critique. It may or may not be other people's place to say such a thing, but it's not racist.
posted by phearlez at 8:16 PM on June 24, 2013


Obviously, Thomas was chosen for the court because of his towering legal intellect and judicious temperament.
posted by spitbull at 4:03 AM on June 25, 2013 [1 favorite]


Obviously, Thomas was chosen for the court because of his towering legal intellect and judicious temperament.

The cognitive dissonance required to make this statement while also claiming that affirmative action is "benign" discrimination is really something to behold.
posted by BobbyVan at 4:36 AM on June 25, 2013


It's already been stated that AA is probably not the perfect solution, but after repeated requests to come up with something--anything--better than what has been proposed by institutions to replace AA or reverting to the status quo, there's been nothing but snarky back-and-forth about Thomas. You can keep on responding solely to empty snark with empty snark of your own, but that in of itself speaks volumes.
posted by zombieflanders at 4:56 AM on June 25, 2013 [1 favorite]


There are all kinds of canons of statutory construction, and they can lead to different results.

Famously, for any one canon of construction there is usually one that urges precisely the opposite result.
posted by snuffleupagus at 5:27 AM on June 25, 2013


Look, I'm no fan of Thomas, but I don't think he was endorsing internment camps -- at least not any more than the sitting Court did back then. He was referring to the strict scrutiny standard, which is in arguably bound up with the Korematsu decision whether you like how the test was used there or not. Extrapolating from this to "round up the Muslims" or "Jim Crow" is just ridiculous, because strict scrutiny is used in many, many constitutional arguments across the spectrum.

Not just "arguably," but historically. However, the Supreme Court is typically able to invoke and apply strict scrutiny without citing Korematsu, so Thomas is clearly making a point about the circumstances that are required for racial classification to survive review however you interpret its valence.
posted by snuffleupagus at 5:50 AM on June 25, 2013 [1 favorite]


(This brief encapsulation and history of the relevant standards of review might be helpful background for some mefites.)
posted by snuffleupagus at 5:55 AM on June 25, 2013


That quote from this Lemieux person is perplexing. It appears to be a critique of those who would weaken affirmative action jurisprudence, but carries out its critique by being racist. This person is literally saying that Justice Clarence Thomas is only on the Supreme Court of the United States because he is black and, barring that, is otherwise unqualified to serve. Or is the only "good black" Justice a reliably liberal one? Was Thurgood Marshall only on the Court because he was black?

Its not being racist, George Bush took Thomas' race into account when he appointed him to the court. That is undeniable. And pointing that out is not equivalent to saying that Thomas is "only on the Supreme Court of the United States because he is black and, barring that, is otherwise unqualified to serve."

Moreover, Thomas' existence on the court is one of the best arguments in favor of affirmative action: Thomas has been a more than adequate judge, and has a coherent, consistent, and inventive jurisprudence. If Bush did not take Thomas' race into account, he more than likely would have defaulted and picked a white male to serve on the court, because racial bias would have been working against picking Thomas. Bush took Thomas' race into account, and in doing so corrected negative racial bias against a black judge, and the results have been desirable by any objective metric (its not like Bush would chose a liberal judge).

Without affirmative action, which Thomas was a beneficiary of, we would have a worse court. It worked.
posted by MisantropicPainforest at 5:56 AM on June 25, 2013


Obviously, Thomas was chosen for the court because of his towering legal intellect and judicious temperament.

Out of the five conservative Justices, why is Thomas the one who is frequently singled out for perceived intellectual weakness? Indeed, why is that charge almost never leveled against Scalia, let alone Roberts or Alito or Kennedy? Why is it okay to insinuate that he is otherwise unqualified to sit on the Court? Your disagreement with him does not make him stupid. Neither does his preference to remain silent at oral argument make him stupid - he reads these little things called briefs, plus he listens to how the attorneys deal with Thomas' more garrulous colleagues. (FWIW, an appellate judge whom I had as a professor once said that he had almost always figured out what his decision would be just from the briefs - oral arguments were for clarification and the very occasional Hail Mary.)

Justice Thomas is certainly an archconservative, but as far as intellect and skills are concerned, he is among his peers. While I disagree with his politics and jurisprudence, he is nonetheless admirable as a dogged, wry, and clear-eyed jurist. Check out his dissent in Kelo. It's clear and smart. No unnecessary or obnoxious flash. At least with respect to that particular case, his chutzpah-filled willingness to overturn precedent appears to even be justified.

Even just comparing him to the rest of the conservative wing: Thomas is a better legal writer than the strident and ideologically inconsistent Scalia - there's a reason why Scalia is only more impressive to the general audience. Thomas is a better writer overall than the mushy Kennedy - if Kennedy wasn't a fence-sitter, then what would we remember him for? He's a more honorable "opponent" than the snaky Roberts, who appears to hide considerable long-term planning skills behind an amiable smile and Dave Barry wit. As for Alito, he doesn't have much of an identity yet for me to have an armchair judgment one way or another, but as a sidenote, it is interesting to consider how Alito's conservative philosophy is very different from that of the originalists.
posted by Sticherbeast at 6:14 AM on June 25, 2013 [2 favorites]


It's already been stated that AA is probably not the perfect solution, but after repeated requests to come up with something--anything--better than what has been proposed by institutions to replace AA or reverting to the status quo, there's been nothing but snarky back-and-forth about Thomas.

Um, seriously? Are you unfamiliar with Texas' top 10% law? Or proposals to shift away from racially-based preferences to income-based preferences?
posted by BobbyVan at 7:06 AM on June 25, 2013 [1 favorite]


Um, seriously? Are you unfamiliar with Texas' top 10% law? Or proposals to shift away from racially-based preferences to income-based preferences?

Ah, yes, the "Top 10%" law, which also assumes institutional racism, in the forms of residential segregation. Ginsburg (correctly IMO) pointed out that there is still de facto segregation in Texas' schools, thus the statement that "[i]t is race consciousness, not blindness to race, that drives such plans.” And as for the income-based preferences, I have not seen any institution of higher learning actually put forth this solution. It's a start, but until someone bites, is not there to replace AA or the older, discriminatory system.
posted by zombieflanders at 7:16 AM on June 25, 2013


I suspect a post will be coming soon, but in SCOTUS news, Section IV of the VRA is unconstitutional as reported by: @SCOTUSblog
posted by ndfine at 7:17 AM on June 25, 2013 [1 favorite]


So yes, conservatives believe that the ability to suppress 100 million votes in the name of preventing a hundred cases of voter fraud is constitutional.
posted by zombieflanders at 7:19 AM on June 25, 2013


Um, seriously? Are you unfamiliar with Texas' top 10% law? Or proposals to shift away from racially-based preferences to income-based preferences?

As documented in the book The Shape of the River, these types of programs do little to promote racial diversity.
posted by MisantropicPainforest at 7:24 AM on June 25, 2013 [2 favorites]


But opponents of the provision counter that it should not be enforced in areas where it can be argued that racial discrimination no longer exists.

Laugh or cry? I think I'm all out of both.
posted by Big_B at 7:31 AM on June 25, 2013


And tomorrow is apparently confirmed as DOMA and Prop 8, where it's expected that they will almost assuredly take the narrowest ruling possible that still allows states to deny GLBT people civil rights.
posted by zombieflanders at 7:38 AM on June 25, 2013


Is this the Shelby County FPP? I was hoping we'd get a new one.
posted by roomthreeseventeen at 7:42 AM on June 25, 2013


Someone's probably putting it together as we speak.
posted by zombieflanders at 7:44 AM on June 25, 2013


Please explain Thomas' sanity, again, in light of his opinion today that Section IV of the VRA is unconstitutional and Section V should be.
posted by Benny Andajetz at 8:02 AM on June 25, 2013


And National Review, founded by a supporter of Jim Crow and defender of it many times, with many recent problems regarding racism (among other things), dances on the grave of the VRA. The modern conservative movement at work.

Bonus Terrible Stuff: The story right above it is called “A Defense of Paula Deen.”
posted by zombieflanders at 8:34 AM on June 25, 2013


Please explain Thomas' sanity, again, in light of his opinion today that Section IV of the VRA is unconstitutional and Section V should be.

I read that Thomas thinks Section V is unconstitutional. This just wasn't the majority opinion.
posted by Green With You at 8:53 AM on June 25, 2013


and it was just today that a local letter to the editor was bemoaning the liberal Supreme Court. ha
posted by edgeways at 9:20 AM on June 25, 2013


Also, the writer of that National Review piece is John Fund, who basically runs a very successful business exaggerating (read: lying his goddamn face off) voter fraud and claiming that voter suppression is essentially non-existent except by groups like the New Black Panther Party.
posted by zombieflanders at 9:31 AM on June 25, 2013


Today Among People Who Wear Robes
posted by homunculus at 9:40 AM on June 25, 2013 [2 favorites]


Roberts is reaching with this:

Regardless of how to look at the record no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant, ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.

Didn't Congress make exactly such a determination when it reauthorized the Voting Rights Act in 2006? Isn't the majority's thinking here just a policy disagreement?
posted by spaltavian at 10:10 AM on June 25, 2013


And of course Texas waits less than two hours before getting legally racist again:
Within two hours of the Supreme Court’s decision on the Voting Rights Act, Greg Abbott, the attorney general for the state of Texas, announced that a voter identification law that was blocked last year by the Justice Department would go into effect.

“With today’s decision, the state’s voter ID law will take effect immediately,” he said in a statement. “Redistricting maps passed by the legislature may also take effect without approval from the federal government.”

In March 2012, the Justice Department objected to Texas’ voter identification law, finding that under certain data sets “Hispanic registered voters are more than twice as likely as non-Hispanic registered voters to lack such identification,” and that the locations and hours of license offices made it difficult for many Hispanics to attain that identification.

Texas also sought clearance through the an appeals court in Washington, which offers a separate track for jurisdictions under the Voting Rights Act. In a unanimous opinion, the three-judge panel ruled that the voter ID law would hinder minority turnout and impose “strict, unforgiving burdens on the poor.”

Several days earlier, another panel on the same federal court blocked a Texas redistricting map passed in 2011, ruling that it had been enacted with “a discriminatory purpose.” Because this map was blocked, Texas had been using temporary maps drawn up by a federal court in San Antonio. The legislature passed that temporary map, with minor revisions, into law, and it is awaiting the governor’s signature. But after the Supreme Court decision, said Michael Li, an elections lawyer in Dallas, the original 2011 maps that had been blocked are now operative, and the governor could simply veto the new maps.
posted by zombieflanders at 10:39 AM on June 25, 2013 [1 favorite]


Time for a 'Right to Vote' Constitutional Amendment
posted by Blazecock Pileon at 10:53 AM on June 25, 2013 [1 favorite]


VRA post is up.
posted by MisantropicPainforest at 11:31 AM on June 25, 2013


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