Update: Some Perspective On Justice Scalia’s “Racist” Question About Affirmative Action

Big fish, meet small pond...

Big fish, meet small pond…

Ethics Alarms recently discussed the unfair attacks on Justice Scalia, now even extending to calls for his resignation, for his legitimate question in oral argument about whether black students accepted into elite schools via affirmative action might be better off being able to excel in less competitive institutions. The question was not racist, reflecting common sense, nor was it necessarily Scalia’s position, as it was an argument raised in one of the briefs on the case. Never mind: much of the media still characterizes the query as outrageous, and social justice warriors are trying to make the episode out to be smoking gun evidence of Supreme Court bias in anticipation of a negative ruling in the case regarding affirmative action.

As the Daily Beast reveals, however, there is a much better explanation than racism for why Scalia might find the argument powerfully supported by the research of Richard Stander and Stuart Taylor in their book “Mismatch” compelling. Young Nino Scalia was a star in elementary school, but failed the entrance exam for the Jesuit High School in Manhattan. His father told him that he might ultimately be better off at a less competitive school where he could shine, and that’s what happened.  Scalia later graduated first in his class at a less prestigious high school. Then he was rejected again when he applied to Princeton University.  Again he took a step down, attended Georgetown University instead, and was first in his class.

Thus it is reasonable to surmise  that Justice Scalia may well have been applying his own experience to that of the affirmative action black admittees. Come to think of it, I was told the same thing when I was applying to college. I was really anxious about the college selection process for some reason, so my parents had me tested and interviewed by a psychologist. He told my parents that I would be happier and more successful in a second tier school, a “big fish in a little pond,” he said, because I liked being a leader and might be intimidated or discouraged in a super-competitive environment where there were lots of smarter, ambitious students around.

Oddly, my parents didn’t take this as a slur on Greek-Americans.

I ignored the advice, by the way, and didn’t regret it. You could say I was admitted to college with the help of a thumb on the scales, since children of alums–my dad went the same college on the G.I. bill—get preference in the final admissions calculations. And who knows? Maybe if I had gone to one of the small liberal arts colleges that quack recommended, I’d be on the Supreme Court today.



Pointer: ABA Journal

36 thoughts on “Update: Some Perspective On Justice Scalia’s “Racist” Question About Affirmative Action

  1. I wouldn’t give too much credit to the Daily Beast after reading that article. They still present it as his argument and utterly fail to mention the brief. They make sure to quote someone who claims the preponderance of academic opinion is against him… as if that means anything at all in the face of actual evidence.

    • The ABA summary was much more fair, as it weeded out the bias and crap. Both mentioned this…

      “Bruce Allen Murphy, who wrote about Scalia’s early-life failures in Scalia: A Court of One, told The Daily Beast he doesn’t believe the justice’s early life had much to do with his comments. Instead, Murphy said Scalia makes these intentionally inflammatory comments on purpose, in part to rile up a captive media.”

      How the hell does this partisan hack know why that academic argument was interesting to Scalia? It’s a valid point to raise, whether one accepts it or not. He discredits it by suggesting that Scalia raised it to annoy the media—what garbage.

      • Are you saying that Scalia doesn’t deliberately “stir the possums” sometimes?

        He revels in being an enfant terrible.

        I don’t know if this was an example or not, but I consider it highly likely it’s just Scalia being notoriously non-PC, as when he said that factual innocence is no reason for an execution not to take place, as long as due process has been granted to the accused..

        DISCLAIMER: I’m not a fan of the man, either professionally or personally, so my own bias can’t be ignored.

        • No, I’m not saying that. But this is not such a case. First of all, there’s nothing PC about waht he said unless someone isn’t listening, isn;t too bright, or is just determined to get Scalia. Second, if he is an example of the phenomenon he was citing, it’s obviously not bomb-throwing.

  2. The race baiters will ignore anything that doesn’t fit the mold for their smearing profile; sure it’s unethical but they really don’t give a damn as long as they think they can force their hand with their illogical smearing. To a race baiter, the ends always justify the means, regardless of the means, regardless of logic, and regardless of truth.

    I really fear for the future of the United States when we have the twisted logic of people, that think like these idiotic race baiters, lining up for leadership positions.

    • RT, I am so grateful that you have come along to comment in this blog. (That is NOT sarcasm.) With you, Joed68, wyogranny and the inimitable texagg04 (plus a good few others) sustaining the fight for the right, I can take a long needed vacation. (I was going to say what I hope will result from that vacation, but that would be too much like counting chickens before they hatch – or hoping some unethical things become ethical.)

      • luckyesteeyoreman said, “…sustaining the fight for the right”

        You left that wide open for interruption. So since I’m not exactly sure what you meant when you wrote “fighting for the right” but based on what I personally fight for, you worded that wrong; I fight for what’s right not for the right (meaning the political right). Does that need further explanation? If you were talking about rights as in Constitutional Rights then, Just because we the people have the right to do and say whatever we want, does not make what we do and say right.

        luckyesteeyoreman said, “I was going to say what I hope will result from that vacation…”

        Don’t hold back now; do tell.

  3. What’s really scary is that in this administration (and in a Cruz administration if he gets his way) the possibility exists that Scalia could be hounded into an impeachment proceeding.
    Politics doesn’t belong on the court. Even a retention election would be a disaster.
    Politicians seem to forget too easily that what you can twist the law to do for your party today can be easily twisted against your party in the next cycle.

  4. “Ethics Alarms recently discussed the unfair attacks on Justice Scalia, now even extending to calls for his resignation”

    No doubt initiated by some who are worried that with a good likelihood of Republicans being in charge, the eldest round of Left-leaning justices may not last the term and stand a good chance of being replaced by appointees less of their persuasion. It’d be useful, though an utter long-shot to go ahead and oust a sitting conservative justice and replace him with a Lefty in case the next President is a Republican.

  5. Malcolm Gladwell makes the same argument (sans affirmative action) in “David & Goliath” positing that good students accepted into elite schools may fair better academically and socially by attending a not so elite school. PS: I am a tad smitten with Megyn…just sayin

  6. Just taking a moment to imagine a professional ethicist who is also well versed in Constitutional Law…Jack…and everything I am imagining is positive. Go for it, Jack.

      • The tests were ridiculous, and also useless. I recall that the occupational predicting test, which I took twice, reached contradictory conclusions. And they all missed a lifetime personality trait that is screamingly obvious—yes, I like being Big Fish. I also cannot resist taking on challenges when someone tells me it’s hopeless. Don’t tell me a hundred classmates are going to leave me in the dust. Let me at ’em.

        He never asked if I was a Red Sox fan, which would have clarified things.

        Honestly, I think most psychologists are quacks.

        • Jack said, “I think most psychologists are quacks.”

          I’m not sure where you’re getting that “most” from or if it’s fair, ethically speaking of course. Are you condemning “most” based on the one or the few you’ve have direct interactions with?

          Personally, I’ve met a slew of psychologists. My mother is a psychologist and I had a job many years ago that required me to work side-by-side with a group of psychologists; in general (outside of pompousness) I’ve found them to be reasonable listeners and possessing a lot of reasonable common sense, with the exception of my mother when she tried to use child psychology on me as a youngster, I knew exactly what she was doing.

          • I think it’s a pseudo science, and psychiatry is not far behind. I think some basic psychology truths and tools are useful, but that laymen can learn to be just as able to apply them as the alleged professionals.

            In that regard, it’s a bit like ethics.

            • As a retired psychologist myself, I have to agree. The very few scientists in the field (which I have decidedly not been following since I retired) seem to have become almost extinct. What convinced me to retire was noticing that virtually every psychologist out there had his/her own peculiar theory and was running a practice based on it.

        • Jack said, “I also cannot resist taking on challenges when someone tells me it’s hopeless.”

          Maybe the psychologist had you pegged more than you actually realize? It would not have been beyond a Psychologist to have pegged you early on as one who couldn’t resist a challenge to prove someone wrong about you, so he might have intentionally challenged you. 😉

      • Yes, I read the entire post. I was interested to learn why Jack thought the psychologist was a quack. So I asked him. And I see he responded.

        • I’ve been counseled by one not so great at least for me psychologist and another very good, at least for me psychologist I found extremely helpful. I think psychiatrists are really important because they can prescribe things like, oh, anti-psychotics and lithium and other life saving medications. Sorry to hear Dragin Dragin was so bummed by the profession. Maybe those are occupational hazards of professions. I got out of practicing law after twenty years mostly because of lawyers.

          • Jack, who knows, maybe if you’d gone to a place like Hamilton College and won every prize imaginable and headed up the Phi Beta Kappa chapter and edited the newspaper and had the highest grades in your class, you’d have gone to Harvard for graduate school and made Doris Kearns Goodwin look like a blogger on presidential bios? At least two guys from my class are tenured profs at Harvard, many others obtained advanced degrees there or at Yale and so forth. So I’m sure you’re happy you went to Harvard and I’m sure you’re justifiably happy with how your life has turned out, but his recommendation just didn’t reek of quackery to me. If you had it to do over again, would you rather have gone to Harvard undergrad or to Harvard or Yale for law school or graduate school (or to teach) after having shone at a lesser undergraduate school? Pointless speculation of course, but somewhat germane to the issue at hand?

            • We wrote comments to each other simultaneously. It’s a Festivus miracle!

              “Never look back; someone may be gaining on you.”

              By the way, I had a course with Doris in The American Presidency. She was regarded as cute as hell, and the faculty’s sex symbol, with coy answers to her rumored trysts with LBJ.

              Now she looks like a little old lady, and it makes me want to shoot myself. But she was a lightweight then, and is still one now.

          • Just because I think most psychologists are quacks doesn’t mean one, even one of the quacks, can’t be helpful. Hell, even psychics and faith-healers do some good on occasion.

            Things like Woody Allen being in analysis for three decades and still seducing his adopted daughter, and Danny Kaye having a psychotherapist living in his house for daily sessions and STILL being a maladjusted, miserable wretch cause me to be cynical about the whole field of professional mental and emotional treatment. They hand out drugs, as you say. That sure wasn’t what Freud and Jung had in mind.

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