Protecting Privilege

There is very little I can add to the mountains of commentary criticizing or defending the  Supreme Court’s decision to overturn affirmative action in University admissions. I do think it is important, however, to focus on its impact, which will be almost entirely limited to colleges and universities that are considered “elite.” As several analysts have pointed out, the U.S. has somewhere between 3,500 and 5,500 colleges and all but 100 of them admit more than 50% of the students who apply. There are only about 70 that admit fewer than a third of their applicants.

In other words, the schools most Americans attend admit most of the people who apply to them.

The fact that the Court’s ruling will have a limited effect does not, of course, excuse a decision that race cannot be considered, but legacy status, recruited athlete status, and financial aid eligibility—aka  “affirmative action for Whites”– can.

Americans make competing arguments about affirmative action in college admissions: defenders point to the undeniable educational benefits of diversity in the classroom and  the persistent effects of this country’s history of racial injustice; opponents point out that perceptions of favorable treatment diminish recognition of individuals’ accomplishments, and that race is no longer a clear proxy for disadvantage (should a Black doctor’s son who attended cushy private schools have a “leg up” over a poor White applicant?)

The fact that most perceptions about admissions aren’t accurate–I’ve served on admission committees–doesn’t mean they aren’t damaging.

The Court’s decision reminded me of a long-ago discussion with a relative. She was about my age, and we both had sons who were entering college. She was incensed that one of her sons had failed to gain admission to a particular, competitive school (I no longer remember which one), and attributed his rejection to affirmative action. If there wasn’t “favoritism for ‘those people,’ she was absolutely convinced her son (who was actually pretty unimpressive) would have been accepted.

I’ve read bits and pieces of the dissents, and–as a lawyer–find them persuasive. But as we’ve seen with other decisions of this radical Court, nuanced  legal arguments rarely translate accurately into the ensuing political and social debates.

As the months pass, I may revise my current assessment of the impact of this decision, but right now, here’s what I see:

  • People like my relative will be deprived of an argument that they use to justify their (already obvious) racial grievance.
  • America’s changing demographics–a change that has already triggered the nasty expression of overt bigotries–will ensure the continued diversity of the great majority of university classrooms–especially as so many colleges are seeing fewer applicants and experiencing fiscal challenges.
  • The impact of the decision will fall almost entirely on the elite institutions that produce the most privileged members of American society. The Chief Justice’s ruling (aptly described by Justice Jackson as a “let them eat cake” decision) will protect his alma mater and other elite universities from the equalizing effects of a more diverse student body.

The truth is, those elite universities are already experiencing what has been called the “gamification” of admissions. Families with the means to do so have engaged in multiple efforts to assure their offsprings’ success, from coaches to help with essays and SAT preparation, to actual bribes that led to jail terms for some celebrity parents.

What would a fair process look like? After all, the use of race–or legacy status, or athletic prowess, or wealth–is almost always applied to a pool of applicants all of whom are eligible for admission. Arguments about merit are beside the point–these schools get many more applicants who meet or exceed their criteria than they can admit. The issue is: when you have identified 200 students who can clearly do the work, and you have room for only 100, how do you decide which ones to admit?

One of the better suggestions would substitute socio-economic status for race; given the continued structural racism of American society, Blacks should be well represented in an underprivileged cohort. (Letting more poor kids of any color into Harvard and Yale would certainly increase diversity…)

According to survey research, a majority of Americans oppose affirmative action in higher education. Much of that opposition is because people don’t understand how it actually works, but there’s no denying that a lot of it is simple racism and a defense of privilege.

Meanwhile, a rogue Court continues to eviscerate legal precedent, with consequences that will likely extend far beyond the issues of the cases being decided…

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Grievance Cults

In mid-June, a number of media sources reported on a cult in Kenya that advised members to starve themselves to meet Jesus. At the time of the reports, some 318 people had died, and another 65 taken into custody were still refusing to eat.

The cult leader–one Paul Nthenge Mackenzie– was a taxi driver before he founded Good News international church, promoted the Shakahola Forest as a refuge and ordered   his followers to starve so they could go to heaven before his predicted end of the world date. He also urged children not to attend school, saying that education was not encouraged by the Bible, and he had a YouTube channel where he encouraged his followers to reject modern aspects of life (You Tube isn’t modern??), like wearing wigs or using digital payment services. 

It’s unclear what grievances led Kenyans to join that cult.

Many Americans reading about this undoubtedly felt superior, assuming a degree of sophistication that would prevent acceptance of obviously lunatic ideas.

Think again.

Let me share with you just a few positions from the official Republican platform of the State of Georgia.

A section on “election Integrity” demands English-only ballots, an end to early voting, an end to automatic voter registration when getting a driver’s license, and an explicit county right to ban “Dominion” voting machines–the usual political power play.

Then it got mean. And weird.

The official position of Georgia schools shall be that there are only two sexes, biological males and biological females,” and, “We oppose transgender normalizing curriculum and pronoun use.” It’s not just “Critical Race Theory” that makes an appearance, but “The 1619 Project,” “DIE (Diversity, Inclusion, Equity,” “Social Emotional Learning,” and “Drag Queen Story Hour” come up, too, all of which are pretty much shorthand for “right-wing propaganda hack Christopher Rufo is my guiding light and I will promote whatever he says in whatever words he says it because I, as a lowly Georgia Republican, have no brain for doing brain-thinking on my own.”

There’s a specific section banning state funds from being used to “enable participation with, or show support for” what they call “Globalist Organizations,” like the World Health Organization or the United Nations. These are paranoias from the decaying John Birch Society but filtered back through thinly veiled “globalist” rhetoric to make it even more clear that Georgia Republicans mean it in an antisemitic way.

There is also opposition to the “Great Reset” (whatever that is) and to attention to “Environmental, Social, Governance (ESG)”.

There’s a very evasive section opposing the removal of “any” monuments or other honors honoring “veterans of any conflict,” which would almost pass as a phrase not specifically intended to protect traitors of the Confederacy if they didn’t tack on a reference to racist traitor monument Stone Mountain at the end of it.

And of course there’s support for a total abortion ban.

There is also support for a ban on prescribing puberty blockers, and a call to “Protect Georgia Food from Vaccines.”

The Georgian who posted this description noted that the state’s governor, Brian Kemp, and its Secretary of State, Brad Raffensperger, hadn’t attended their party’s state convention, despite the fact that

 This isn’t the riffraff of the base; these people are at least committed enough to Republicanism to pretend to be “delegates,” at least until Saturday afternoon rolls around and they’ve had enough pretending at civics for the day. And there’s nothing they can think of that needs fixing in the nation, nothing at all, except to make sure that “Drag Queen Story Hour” and “CRT” and “Globalist Organizations” get what’s coming to them. The party is for nothing; it’s only against whatever the last non-Republican said, anywhere, ever.

The poster’s rant–and it was a rant, albeit an informative one–made me think of the videos of the January 6th insurrection: the QAnon guy with the horns, the large number of confederate flags and flags purporting to represent Christianity–the sheer insanity of it all.

Kenyans followed the lunatic ravings of Paul Nthenge Mackenzie. The January 6th rioters and (as of April, 2023) seventy percent of self-identified Republicans still support  the equally insane ravings of Donald Trump.

The bottom line: if they want to win their primary elections, even rational Republican candidates running for municipal and state offices have no choice but to pander to the majority of truly deranged members of what is no longer a political party but a racist, anti-Semitic, misogynist “grievance” cult.

That reality is what has led so many former Republicans to become”Never Trumpers.” 

Until and unless the GOP returns to sanity or is replaced by a genuine political party, those of us who haven’t drunk the Kool-Aid need to vote straight Blue.

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Reforming The Court

Recent disclosures ranging from ethical improprieties to clear corruption have lent urgency to longstanding calls to reform the Supreme Court.

Before those disclosures, most of the lawyers and scholars advocating for such reforms did so on the basis of work product–including the dwindling number of decisions the Court issues annually.

Even before the recent disclosures, legal theorists were concerned with the Court’s loss of democratic legitimacy. It isn’t just the appalling shenanigans of Mitch McConnell; Neil Gorsuch was the first Supreme Court justice in American history to be nominated by a president who had lost the popular vote and confirmed by senators representing less than half of the country. Brett Kavanaugh was second, and Amy Coney Barrett was third. 

 The subsequent evidence of Thomas’ and Alito’s corrupt behavior has been especially unsettling.

I used to defend lifetime appointments to the federal judiciary to my students, pointing out that security shielded jurists from political pressure. But  justices live a lot longer than they used to, and– as my lawyer son recently pointed out– the security afforded by those lifetime appointments also provides an incentive to ignore the rules. With a closely divided Congress, and in the absence of the enforceable ethical codes that bind lower-court judges, they are effectively shielded from consequences. As a practical matter, they’re above the law.  

It’s time to consider reforms.

An article by the Brennan Center, published just after the leak of Dobbs suggested several. The article began by describing the far-right Federalist Society’s decades’ long, successful effort to capture the Court.

Beginning in the 1970s, corporate interests wary of 1960s socio-political movements developed and funded comprehensive infrastructure to advance a far-right agenda, focusing on the judiciary as an instrument for social, economic, and political change. A crucial component of the plan to push back against left-leaning legal successes was the organization and mobilization of conservative lawyers and judges who could ensure that corporate America’s preferred socioeconomic and political order was upheld in the courts. It is in this ecosystem that the Federalist Society emerged and built an empire around shepherding future leaders of the conservative legal movement into judgeships. All six justices appointed by Republican presidents are current or former Federalist Society members.

Some scholars recommended reforms that would constrain the Supreme Court’s ability to invalidate certain types of legislation. Others would regularize Supreme Court appointments and require periodic judicial turnover.  Still others would expand the Court.

One of the most popular suggestions would impose term limits–terms long enough to insulate jurists from political passions–18 years is popular– but short enough to avoid the negatives of lifetime tenure.

An article in Politico argued that a proposal to impose term limits could generate bipartisan support.

The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.

There is a significant hurdle to overcome.

Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment. Yes, constitutional amendments are hard to enact. We have not amended our Constitution since 1992, and we have done so only once in the past half-century. But there is reason — even in these politically polarized times — to believe that constitutional reform is possible.

As the essay from the Brennan Center noted, however. court reform movements have a long history at the state and federal level – and have often seemed impossible until changes in the political environment made them all but inevitable.

And as Politico reported,

What is more, almost every state in the union imposes term limits on its state supreme court justices, a mandatory retirement age, or both. Only Rhode Island has a system of life tenure akin to the federal model. It should come as no surprise, therefore, that when the National Constitution Center held an exercise in 2020 for drafting new constitutions, both the conservative and progressive teams adopted 18-year limits.

It is abundantly clear that we have reached a crisis point. The current court has issued a string of decisions that are not just wildly unpopular, but at odds with decades of precedent.  it has increased its misuse of the shadow docket, and all but declared war on the agencies of the administrative state. Worst of all, sitting Justices have engaged in activities that range from demonstrably corrupt (Thomas, Alito) to ethically questionable (Roberts, Gorsuch, Barrett, Sotomayor).

It’s time for substantial reforms.

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Arrogance Is Never Having To Say “Sorry”

Linda Greenhouse is one of my favorite Supreme Court reporters, and she recently published a commentary in the New York Times, titled “Is There Any Twinge Of Regret Among Anti-Abortion Justices?”

Marking the one-year anniversary of the decision in Dobbs, Greenhouse noted that  the decision has propelled a crisis in reproductive health care that is “acute and growing,” leading to alarming consequences.

Greenhouse first shared the history of another case that had generated “alarming consequences”–consequences that, in that case, led to a speedy reversal.

Because Jehovah’s Witnesses believe that saluting the flag or reciting the Pledge of Allegiance amounts to worshiping secular authority, they prohibit their school-age children from engaging in the practice. In 1940, with war raging in Europe and patriotic fervor rising at home, the Supreme Court ruled that the Constitution provided no religious exemption from what many public schools deemed an essential civic duty. The decision upheld a Pennsylvania school district’s expulsion of a Jehovah’s Witness brother and sister. A single member of the court dissented.

A mere three years later, even though the United States itself was now at war, the court reversed itself. In a new flag-salute case from West Virginia, three members of the original majority switched sides and two justices who had joined the court since 1940 voted with them. One of those two, Robert Jackson, wrote the new majority opinion, strategically avoiding the contested question of religion in favor of an eloquent defense of free speech.

“Compulsory unification of opinion achieves only the unanimity of the graveyard,” he wrote in West Virginia State Board of Education v. Barnette. 

The first decision, in Minersville School District v. Gobitis, had unleashed a wave of violence against Jehovah’s Witnesses: in the wake of a ruling that many saw as evidence that Witnesses were anti-American, mobs attacked individuals and destroyed their churches. Some 2,000 Witness children were thrown out of school, and some of their parents were criminally prosecuted.

Greenhouse then  enumerated some of the dire medical consequences of Dobbs, and then asked her question:

A year after sowing so much chaos and misery, are any of the five members in Justice Samuel Alito’s Dobbs majority sorry? Even a little? I’m not so naïve as to think there is even a slim chance they would reverse themselves. I just wonder whether they feel even a twinge of regret.

As she points out, the immense harm to women couldn’t have come as a surprise. “Valuing fetal life over the lives of women and girls was no doubt a feature, not a bug, in the majority’s view; that was, after all, the point of Dobbs.”

Greenhouse then proceeds to answer her own question, saying she doesn’t think the Dobbs Justices are sorry. As she notes, a difference between Barnette and Dobbs is that the justices who changed their minds after Gobitis were motivated by facts, not by ideology.  These Justices were chosen because facts would not sway them: Trump announced during his presidential campaign that his Supreme Court appointees would overturn Roe, and all three of his nominees– Gorsuch, Kavanaugh and Barrett– did just that..

Although Greenhouse doesn’t explore the psyches of the anti-Roe justices, Jesse Wegman took a long, hard look at the author of the convoluted decision in Dobbs,  focusing on the recent disclosures of Alito’s unethical behaviors. Wegman’s analysis of Alito’s personality and character–especially his arrogance– are equally applicable to other examples of the Justice’s disdain for settled constitutional analysis.

Wegman points to Alito’s decision to “devote time and energy to a newspaper essay defending himself against charges of ethical and legal violations that had not yet been published”–an essay that “epitomizes the bitterness and superciliousness that he has demonstrated in regular doses throughout his years on the Supreme Court.

Most judges, whether by temperament or fidelity, avoid the spotlight. They prefer to follow rules and let their opinions do the talking. That has never been Justice Alito’s way. For most of his 17 years on the court, he has appeared to relish playing the role of bare-knuckled partisan soldier, standing athwart history in loyal service to a vengeful, theocratic right-wing movement that elevates religious liberty for some over basic freedoms for all.

Wegman notes that one reason public trust in the court is in free fall is demonstrated by Justice Alito’s “smug, defensive reaction” to criticism.

The moral of this story is not that the highest court in the land should issue decisions consistent with public opinion. As legal scholars often note, the Bill of Rights is counter-majoritarian. The moral is that –in the absence of compelling evidence (a la Barnette)–Justices should respect precedent, and resist confusing their idiosyncratic, psuedo-religious commitments with constitutional principles.

Tune in tomorrow for the second lesson– the need for Supreme Court reforms.

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What Is Government For?

As readers of this blog know, I spent 21+ years teaching Law and Public Policy, mostly to students intending to go into either public management or the nonprofit sector. The faculty of our school was heavily engaged in imparting skills–budgeting, planning, human resource management, policy analysis.. But my classes tended to be different, because these practical subjects didn’t emerge from a void; they are inextricably bound up with our constitutional system, and that system in turn is the outgrowth of great philosophical debates about the proper ordering of human communities. 

The great questions of political theory involve the nature of government. What should government do? What actions by the state are legitimate? What is justice? What is public virtue? 

The American experiment was heavily influenced by the philosophy of the Enlightenment and emerging theories about the proper role of the state, especially the principle that Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

The primary role of government so conceived is to prevent some citizens from harming others. (Granted, there are inevitable arguments about what constitutes harm to others, and what degree of harm is needed to justify governmental intervention.) 

The Bill of Rights expressly limits the ability of government to regulate activities that are purely personal. What we read, whether we pray, our politics and beliefs and life goals are matters for individual decision.

It is that basic American principle of governance that is now at issue.

The decision in Dobbs wasn’t simply about abortion; it attacked a jurisprudence that had become increasingly protective of maintaining that line between individual rights and the legitimate exercise of government authority.

What too many Americans fail to understand is that the question posed by Dobbs isn’t whether a woman should or should not abort. It’s also whether citizen A should be able to marry someone of the same gender, or whether citizen B should bow her head and participate in a public prayer.

The issue is: who gets to make such decisions?

We are properly concerned these days about the functioning of democracy, and whether our lawmakers are reflecting the will of their constituents when they vote on the numerous matters that government must decide. But the arguably radical Justices on today’s Supreme Court have raised a more fundamental issue, because the Justices are authorizing government to legislate matters that government in our system is not supposed to decide.

The Bill of Rights draws a line between state power and individual rights. Legislators don’t get to vote on your fundamental rights: to free speech,  to pray to the God of your choice (or not), to read books of your own choosing, to be free of arbitrary searches and seizures, to cast votes in elections…

Even when lawmakers are reflecting the will of the majority, in our constitutional system they don’t get to deprive people of fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that in a free society, certain decisions are not properly made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

As I’ve argued before, the ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into all aspects of our private lives. Its “reasoning” would allow other fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that an individual’s right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by government is no different from giving lawmakers the right to dictate my choice of reading material, or your choice of religion.

The issue isn’t what book you choose–it’s your right to choose it. It isn’t whether you’ll marry person X or Y, it’s your right to choose your marriage partner. And it isn’t whether you abort or give birth–it’s about who has the right to make that decision.

Government paves streets, issues currency, imposes taxes…it has plenty to do without upending America’s foundational philosophy.

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