The Supreme Court Delivers An Ethical Opinion On Democracy, Affirmative Action, and Fairness

Good work, SCOTUS!

Good work, SCOTUS!

In SCHUETTE, ATTORNEY GENERAL OF MICHIGAN v COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRATION RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY, the U.S. Supreme Court just affirmed, 6-2, Michigan’s right to ban state affirmative action programs. The decision was narrow, not taking up the issue of affirmative action itself, but rather affirming the right of the citizens of the state to ban it at the ballot box.

You should read the decision  here, and not let journalists distort it for you.  My favorite quotes:

  • “The question here, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the challenged action reflects a racially discriminatory purpose. It plainly does not.”
  • “In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live— think alike, share the same political interests, and will prefer the same candidates at the polls.”
  • “But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.”
  • “Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.”
  • “That history demands that we continue to learn,to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.”

The decision was necessary, and in its results, ethical. The remarkable complaints of the dissenters illustrate this. “I cannot ignore the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity are unnecessarily hobbled in their pursuit of a diverse student body,” Sotomayor wrote in her dissent. The other dissenter, Justice Ginsberg, said that he decision “eviscerates” the Constitution’s equal protection guarantee that government should not make it harder for minorities to participate in self-government.

To Sotomayer’s observation, the correct response is “Good.” No student, white or black or any other color, should lose a place in college because of race. The statute under consideration banned “preferential treatment” based on race, gender or ethnicity in state education, employment or contracting. Another way to say “preferential treatment” is “discrimination,” or “bias.” Ginsberg’s assertion that a minority or a majority should have the ability to warp public policy and law to favor their own ethnic or racial group over others, and to prohibit that is a violation of Equal Protection is no less than Orwellian. Whites cannot make laws favoring their race, and properly so. Ethics Hero status is due Justice Breyer for having the integrity to break ranks with the Court’s often lock-step liberal wing.

I await the distortions and rationalizations soon to emit from columnist Eugene Robinson, Harold Mayerson and others, as well as the race-baiters at MSNBC. They should be foaming at the mouth about now.


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49 thoughts on “The Supreme Court Delivers An Ethical Opinion On Democracy, Affirmative Action, and Fairness

  1. Any policy that causes any other potential student to lose their spot in favor of a lower-scoring applicant is wrong on it’s face. If this means suit would need to be filed to ban legacy admissions, then so be it – I would support that as well.

    Everyone gets in based on scores. Everyone. No exceptions.

    • It’s a little more complicated than that. One report suggested that the most important criteria, in order of importance, were (1) grades in college preparatory courses (2) strength of curriculum (3) grades in all courses and (4) class rank. I emphatically agree that race should not be a criteria used though.

  2. Bull. Sotomayor is right. Any policy that insists on color blindness in a manifestly color-conscious world is ill-conceived, and is the worst kind of sanctimonious denial.

    The unfortunate thing here is that “affirmative action” is being playing out in colleges. That is way, way too late, and wrong for many of the reasons you have consistently pointed out – on that we can agree.

    The real challenge is that there’s a huge racial dividing line between three-year-old kids who get to experience hi-speed Internet on a iPad with educational apps, and those who don’t. The first group is overwhelmingly white – the second group is overwhelmingly not. By the time they get to first grade, it’s game practically over.

    The right place to reform racism is not after the horse is out of the barn and well down the highway, it’s much earlier. But this dogma about how “let’s all pretend race isn’t real” is the worst kind of ostrich-hiding. It can lead only to more misinformed claims of reverse racism.

    Ask yourself: would you rather be reincarnated as a 5-year statistically average person of color in the US today? Or as a statistically average 5-year old white person? And how much would you pay to stack the deck?

    • I will forever find it interesting that the only people who care about race are the people who call me a racist.

      I only want the best people at the top, and I don’t much care what they look like. If they end up to be all white, so what? If they turn out to be all black, that’s fine too.

      I don’t care about color. Why do you care so much?

      • Scott, as a fellow white person, I am able to appreciate your blissful ignorance of our joint membership in the lucky-parents club. I can go there too.

        But having been married to someone of another race, I can no longer pretend it’s irrelevant – if your skin is black, you have no choice but to be reminded multiple times per day of that fact, in mostly unpleasant ways.

        To paraphrase you: I will forever find it interesting that white men on the supreme court are generally of the view that sexism and racism are trivial remnants of history, while it’s the two women and one of the two minorities on the court who seem to view it differently.

        And yes, I know about Clarence Thomas.

        • Your “paraphrase” doesn’t prove anything other a possibility of bias… on the Women’s part. Since it would seem the “man” side is bipartisan, and the “minority” side split its vote.

          So, I’m not sure what you were trying to demonstrate…

        • Apparently, you DON’T know about Clarence Thomas, Charles, or any number of other successful Americans who advanced in life; not because of their ancestry (or because of it under “affirmative action”), but through their abilities and willingness to work hard to achieve worthy goals. That way- and no other- is vital to the process of a free society and a necessary early lesson to all young people of whatever background. What you call “blissful ignorance” is the key element in securing the unbiased vision of America that leftists like yourself claim to uphold, but despise in reality.

    • But that’s not the real question, is it? Or shouldn’t be—nothing in the Constitution or in life demands that we all begin with the same advantages and disadvantages, or that the law should be responsible for leveling every hill and filling every valley. The question is, why should a black individual have an easier time getting into college than his white counterpart from the same school, same neighborhood and of the same socioeconomic status, who also happened to have better grades and test scores? And the answer is, he shouldn’t and if he does, it is purest race prejudice rationalized by crack-brained social engineering.

      • And the alternative…Sotomayor, behind the weaselly language, is saying that a minority group should be able to force (what does “convince” mean in this context, other than in The Godfather sense?)universities to institutionalize a permanent advantage for its membesr over others based on race! When would this game ever end, except by majoity determination? Now that we have seen how racism is going to be presumed whenever it can confer political advantage, as in the Martin-Zimmerman case, how can anyone deny that only the public saying–“OK, enough!” will ever stop a race-spoils systems? Seriously, do you think any group that benefits from a preference system will eventually say,”OK! Now we’re ready to compete on equal, race-blind terms!” ?

    • I agree with the idea that by the time we’re talking about higher education, you’re right…. the boat has sailed. I disagree with the idea that an internet connection and apps are anything but symptomatic at best, and put much more stock in active parenting (which is much easier with two married parents, which something like 70% of black Americans don’t have). But perhaps that’s not the point I should be making.

      We aren’t supposed to have a system where everyone is equal in every facet of their lives, but a system where we are equal before the law. Equality of opportunity is more important than equality of outcomes. It is not the place of the government or SCOTUS to try to correct every social ill with some form of legislation. It’s inappropriate. And even if we wanted to apply consequentialism, they aren’t good at it.

      • This.

        No, it isn’t the role of government to ensure the material equality of individuals, nor is it the role of government to ensure material opportunity. In this topic, it is the role of the government to ensure that no one actively denied participation in the Free Market without reason.

  3. According to many projections, white people are on the way to becoming a minority in this country. If and when that line is crossed, do white people fall under that “racial minority” Sotomayer discusses? I suspect not. Certainly, men are in the minority globally, and yet it doesn’t seem to have tilted anything in their favor.

    It’s horrible – I’m reminded daily of the fact that I am a man. I demand special treatment! – That’s how it works, isn’t it?

    • Saying ‘racial minority’ is probably more palatable than ‘underprivileged person’. In Canada, the term is ‘disenfranchised’ and the disenfranchised minority act prescribes, all other things equal, that members of disenfranchised classes be given preferential treatment in hiring processes. What that’s supposed to do is give people (in Canada, mainly natives) who have the same experience and education as his white opponent preference in hiring. Which is bad enough on it’s face, but in practise, because experience and education are sometimes hard to quantify, there are cases (Crown Corporations are famous for this) where so long as the minority can pass the vampire test (cast a reflection, and fog a mirror) they’re hired to make quotas, because they have a hard time finding minority applicants. It’s bad for everyone involved, the person who doesn’t get the job they deserve, the company who doesn’t get the employee they should, and the member of the minority who has to deal with the stigma of ‘you got the job because of your race’ even if he WAS the best candidate for the job.

      • Or the person who got the job because of their race and clearly hasn’t the experience or ability to do it. That must be a special kind of soul destroying burden as well.

  4. My personal experiences leads me to believe that affirmative action is harmful. I grew up in a very poor area of California. The apartments accross from my mobile home park was constantly raided by police for drugs and crime. I was able to watch hookers patrol while dining in one of my favorite local restaurants. My home town even has the nickname of victimville for what it has caused in the area.

    I have known many people in my home town to go many different routes and it had little to do with color of their skin or money. One of my best friends growing up just received his masters in engineering. Another is going to university in Arizona. Others have been in and out of prison. And it is the white friends I had growing up going in and out of prison. The ones of color are the ones graduating from college.

    This is all personal experience and of course holds little weight in discussions like this as we are discussing a larger world than what mine was.

    Affirmative action had its place in our world when race was a deciding factor to remove people from activities. Much like unions, it may be time to let it go and leave in place a protection from it and not a policy to force it down people’s throats.

    I think society needs to make a decision. It will be a hard to decision to make. The society created by rap and television needs to be corrected.

    Sorry if there are any grammatical errors or spelling problems. Writing this on my phone and it is a problem to proofread.

  5. The first quote you cite from the majority opinion is typical of the Court’s judgments in recent civil rights cases: “whether the challenged [neutral state] action reflects a racially discriminatory purpose. It plainly does not.”

    Translation: unless you can prove that striking down affirmative action is the avowed act of an avowed racist, such striking down will be upheld.

    Sounds good, until you realize that kind of criterion completely rules out the presentation of de facto evidence of discrimination. This isn’t just true of affirmative action cases, the same pattern shows up in criminal actions: if you can’t prove the policeman was a bigot, then you can’t introduce as evidence a pattern of racially discriminating behavior. Never mind if someone’s arrest record was 100% black – if he feels justified in his arrests, then he was justified in his arrests, never mind the data. That’s the Supreme Court’s view.

    What the court has done is a pincer movement: granting a lot of leeway for judgment on the street (literally, in the case of police actions), as long as it’s not driven by conscious and intentional bigotry, while denying as valid evidence any patterns of discrimination.

    There are reams and reams and reams of studies about unconscious patterns of racism – in housing, in education, in grades, in arrest records, basically in all walks of life in the US. But those patterns – as again, in this case – are increasingly considered inadmissible as evidence.

    OF COURSE the striking down of affirmative action doesn’t “reflect a racially discriminatory purpose.” Nobody intends that purpose. But what the court is saying, make no mistake, is that ABSENT such overt purpose, we are not interested whatsoever in the results – even if they end up reflecting horrendous discrimination.

    We’ve made great progress in making bigots socially unacceptable. But we’re doing it at the price of willfully blinding ourselves to more insidious forms of institutional racism.

    • As long as political correctness requires us to hold that the disproportionate number of minority kids that are disciplined in school for defying authority, the disproportionate number of African Americans imprisoned for drug offenses, the low high school graduation rates, and the disproportionate levels of babies out of wedlock and fatherless homes in the black community are proof of de facto discrimination rather than structural, cultural problems within the black community, then the de facto discrimination argument will remain a con game and indeed a destructive and crippling distraction giving a whole segment of society a built in excuse for every failure and every setback that exacerbates racial divisions as well. SCOTUS is 100% correct not to play. That’s why the opinion is ethical.

      • So most racial discrimination is due to “structural, cultural problems within the black community,” you say.

        Similarly, do rape victims bring it on themselves by wearing short skirts?
        I will simply say that I find both views appalling.

        The real issue here is not affirmative action at colleges, that was merely the most recent narrow battleground. (And I happen to agree with you, affirmative action at the college level is highly ineffective). The real issue is the double standard the Supreme Court is putting forth–and your buying of it.

        • No, I didn’t say anything about racial discrimination. Racial discrimination, which exists, is racial discrimination. Every persistent problem of the black community, however, is not due to current racial discrimination, but toxic and stubborn cultural factors that were in great part created by past racial discrimination.

          I’ll ignore the unfair rape comparison, which is beneath you.

          It is strange to hear a decision that allows an end to affirmative action, the epitome of a double standard, as a double standard. Strange, but typical of the logical fractures this policy always has engendered.

        • I need you to explain that double standard. My understanding of a double standard is where someone or something treats one group of people differently than another. While referring to SCOTUS, affirmative action and a double standard, I can only assume that SCOTUS ruled in the affirmative to affirmative action benefitting a different group, right? I seem to have missed that ruling.

          • My bad choice of words. I see why that was confusing.

            I meant to say the Supreme Court is continuing in a tradition of – on the one hand – increasing freedom to behave in ways that demonstrably and disproportionately affect races (traffic stops, drug busts, sentencing effects, college admissions), while – on the other hand – limiting the introduction of those demonstrable effects into the court system as a means of combating racism.

            In short form – more freedom to create disproportionate racial effects, less freedom to use those effects as legal evidence. This decision continues the trend in place for a couple of decades now.

            I should not have used the term “double standard” to describe this, since that term carries some obvious connotations in the context of affirmative action. My bad.

            • Ok, but do you really think that those things that seem to effect people of a certain demographic more are really inherently discriminatory based on race? It could be a single parent thing. Or an income paradigm.

              I like that you brought up drugs. For better or worse, the United States has their war on drugs. Is it inherently racist to enforce the law because a certain demographic breaks it more often? If black people committed murders per capita more than everyone else, would it be racist to prosecute murders? The fact of the matter is that the law is unpopular, so it gets attacked by any and all ways possible. And racism is a bumper sticker. I don’t like drug laws either, but I don’t think they’re racist, I just think they’re stupid.

                  • Jack,

                    You say, “So the solution is compensatory discrimination? Come on.”

                    I didn’t say that. No one said that. Not in this dialogue.

                    The solution, since you asked, is to figure out ways to do what Roberts wants – to stop the discrimination. That certainly means highlighting the data, facing the truth, talking about it.

                    Gosh that’s exactly what Sotomayor said.

                    • Odd to deny supporting compensatory discrimination after this rant by you.

                      Oh, I guess you don’t outright say you support it, but your sure seem irritated that laws endorsing it have been struck down.

                    • I am puzzled as well…what is affirmative action but compensatory discrimination? And remember, the opinion just says that the public has a right to reject such policies, not that such policies should necessarily be struck down. As others have pointed out, Sotamayor, and I suppose Charles?, is claiming that it is discriminatory for a majority to say that it objects to discrimination. Some would call the wisdom of such a public decision self-evident…and progress.

                    • (how many times…). Ok, once more. There’s not a lot of support for college level affirmative action, and I’m not arguing for it either. OK?
                      What I AM pointing out is the logic the Roberts court used. This decision basically said two things:
                      1. Data on patterns of discrimination are not grounds for concern on the part of the justice system;
                      2. Justice on racial issues is increasingly more an issue for legislatures, less for courts.

                      Now I’m not a lawyer, these are just a layman’s view. But it seems to me those are very much in line with an historic withdrawal of the court from rights issues in general in the last 20 years.

                      I realize many people are just fine with that, decrying activist jurists and so on: from my good liberal perspective, it looks like the justice system is withdrawing from issues of justice, and defaulting to majority rule.

                      What particularly concerns me is the emerging refusal to consider data on these issues: we don’t need no stinkin’ data, the court is saying. Huh.

                      The need to rely on majority-elected legislative bodies for social justice for minorities has a terrible history, and not just in this country.
                      You may think this is just about affirmative action in colleges–I’m quite sure Roberts sees it a lot more broadly.

                    • Charles, we can’t have Sotamayor’s open discussion if we misstate the terms and arguments, intentionally or otherwise. Both of these statements are misleading and not consistent with the opinion:

                      1. Data on patterns of discrimination are not grounds for concern on the part of the justice system;
                      2. Justice on racial issues is increasingly more an issue for legislatures, less for courts.

                      1.The data are not “patterns of discrimination,” but rather cumulative proportions that some argue constitute proof of invidious discrimination, when they may not be, and often are not.
                      2. There is no such statement involving “justice.” The issue is whether in a democracy the citizens and legislature should formulate laws and policy, or the courts.

                      You can’t complain about a case that involved only affirmative action and keep saying that there’s nothing wrong with vetoing affirmative action. There is no doubt that Sotamayor is saying that the public shouldn’t be allowed to veto affirmative action. So it is endorsing racism to allow the public to kill a bad policy because the same reasoning could be used to permit it to veto a good policy? Let’s just declare that democracy is a terrible and risky idea, then, and leave public policy to affirmative-action-nominated judges.

              • Sorry, the data say the drug laws REALLY ARE racist. Normalizing for crime rates etc., blacks really do get arrested out of proportion, jailed out of proportion, sentenced out of proportion, etc. This is NOT some purely income-related phenomenon–the data really do show racism
                And the court refuses to admit it as evidence, focusing instead on intent of cops, judges, bankers, etc

                • How is a law racist? “If you have drugs, you go to jail” Not “if you have drugs and are black you go to jail.” They have to first break the law to be affected by it. And it’s not like they don’t know it’s illegal. It’s a risk/benefit analysis: If I buy drugs, I might go to jail. How much do I want the drugs, and how likely is it I will be caught? The law really is color blind, even if the people enforcing it aren’t.

                  If you want to argue that cops arrest black people when they might not arrest someone who wasn’t black, or a jury or judge might convict a black person where they wouldn’t someone else, that’s a very valid discussion! But that doesn’t mean we give certain demographics a get out of jail free card. Lets say we started all these affirmative programs. What is the point of law then? What benefit is there to following the law that we assume helps stabilize society, if certain groups are given the privilege of ignoring it? What incentive is there ever to do better?

                  By the time they’re applying for college, the boat has sailed, right? By the time they are committing crimes, the boat has sailed. We need to address things like thug culture, not rationalize our way into normalizing it.

                  • How is a law racist? “If you have drugs, you go to jail” Not “if you have drugs and are black you go to jail.” They have to first break the law to be affected by it. And it’s not like they don’t know it’s illegal. It’s a risk/benefit analysis: If I buy drugs, I might go to jail. How much do I want the drugs, and how likely is it I will be caught? The law really is color blind, even if the people enforcing it aren’t.

                    Here I will, in this one limited instance, side with Charles – many drug laws have sentencing guidelines that are… Questionable.

                    For example, cocaine and crack cocaine have vastly different sentencing guidelines. One is generally bought and sold by white people (cocaine), the other is primarily found in the black community (crack).

                    Guess which ones have far, far harsher penalties.

                    • Scott’s quite right about that – it’s one of the most dramatic examples. But hardly the only one.

                    • Also, the stats show that a white person caught with marijuana often gets a pass by the cops but a non-white person actually gets charged.

                    • Of course they should. The point is they don’t.

                      And I guarantee you no one involved in that situation would think that they are discriminating. They would all say, I suspect, that they followed Justice Roberts’ dictum of “just don’t discriminate.” Cops, lawyers, judges, all would say they don’t discriminate – yet the data show that, in fact, they do discriminate.

                      Another example, also cited in today’s Wired Magazine article on sharing economy: HBS professors doing a study on AirBnb rentals find that “AirBnB Users Prejudiced against Black Property Owners: Research from Harvard Business School shows that white property owners are able to command higher rents than black users who offer accommodation of a similar quality.”


                    • Nobody’s suggesting that.
                      What’s needed is to talk about it, get it out in the open, face the data, have a conversation. Which is what Sotomayor said, by the way.

                    • Sotomayer explicitly supported affirmative action, which is by definition discrimination based on race. So no, she didn’t just say we need to have a discussion. She suggested that it is illegitimate for the people of Michigan to explicitly ban discrimination that favors the otherwise disfavored minority. It’s nonsense. If she had written a concurrence that nonetheless bemoaned the loss of an important tool, you might have a point.

                      An amendment banning racial discrimination can’t be read to require racial discrimination, even if compensatory discrimination serves a compelling government interest and has been allowed in limited forms based on supposed intent of the amendment.

                    • That’s right, exactly. Sotamayor, whose dissent really is an embarrassment of non-judicial mau-mauing—and the fact that Ginsberg concurs outs her as a hack—is as disingenuous with her call for “dialogue” as Holder was. Michigan’s public spoke frankly about race, and this Justice wants to tell them that you can’t say that. Meanwhile, she proposes a cover word, or euphemism, for exactly that part of race that is under discussion.

                    • They would all say, I suspect, that they followed Justice Roberts’ dictum of “just don’t discriminate.” Cops, lawyers, judges, all would say they don’t discriminate – yet the data show that, in fact, they do discriminate.

                      So they discriminate without knowing it?

                      I wonder if this applies to issuing concealed carry permits. California Attorney General Kamala Harris, in denouncing a Ninth Circuit ruling that required a sheriff to issue a concealed-carry permit, said that “Local law enforcement must be able to use their discretion to determine who can carry a concealed weapon,” Harris said in a statement announcing the court filing.

                      Is there any evidence that in “may issue” states, the issuing officials discriminate on the basis of race?

                    • A bad policy with good intentions. Crack is more dangerous than coke, but there is no way to express that in a law that doesn’t have an apparently unjust result.

  6. My full response is too long for a comment and too incompletely formulated to offer now, anyway. And I haven’t read the complete decision yet. The short version is that I’m likely to write my own piece on this topic. I suspect it will be a little more nuanced (or “equivocal,” if you prefer), but we’ll be in substantive if not complete agreement.

  7. I have two observations.

    Race-based affirmative action programs are sometimes permitted as a remedy for past racial discrimination that violated federal law. See e.g. United States v. Paradise, 480 U.S. 149 (1987) Proposal 2 does not, and indeed could not, restrict what remedies a state court may impose against Michigan or its subdivisions for federal law violations. The question of what remedies (including race-based remedies) a state court may prescribe for violations of federal law is purely a question of federal law, a question to which the U.S. Supreme Court reserves the final word. Thus, if a state university in Michigan engaged in federally unlawful discrimination against, for example, Ukrainians, Proposal2 would not stop a state court from requiring pro-Ukrainian affirmative action as a remedy for such discrimination.

    Another observation is that the Court restricted the <i<Hunter/Seattle doctrine to laws that prohibit or discourage racial discrimination. Expanding Hunter/Seattle to laws against racial discrimination would yield results that would actually embed discrimination. For example, if a state were to pass laws forbidding racial segregation in public transportation, it would restructure the political process against those who favor racial segregation in public transportation (Brown v. Board of Education, 347 U.S. 483 (1954) does not generally apply to public transportation, so the federal constitutionality of racially segregated public transportation is controlled by Plessy v. Ferguson, 163 U.S. 537 (1896)) Thus, segregationists must appeal to the state legislature, or even the state’s constitutional amendment process, to enact racial segregation in public transportation. (This is likely the case in Michigan, as its constitution’s equal protection clause post-dates Brown.) Under the Sixth Circuit’s application of Hunter/Seattle, such a law violates the equal protection guarantees of segregationists. today’s ruling forecloses such a challenge.

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