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Case Analysis Legal

In their own words

Byawa

Jul 2, 2023

When you read court opinions, it is sometimes hard going. I use the term “emotional blackmail” to describe the type of argument which is based on feels instead of facts.

The children will die if you don’t… Women will die in back alley abortions if you… People will solve disagreements in bloody gun fights if you…

It reminds me of the teacher who once told me that she was terrified of people having a gun in the school. If she said something bad about their precious child, the parent might snap and shoot her. If a parent is willing to murder her for her attitude, why aren’t they beating the crap out of her now?

In —Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023) all the concurring opinions start with facts. I have only double-checked Roberts’ opinion written for the court. When the liberals start their opinions, it is about goals. They want to reach a particular goal, and they tell you why that goal is good, and you should just do “the right thing” without letting that pesky constitution get in the way.

The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” Id., at 492–495. For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent.
—id. (Sotomayor, J., dissenting.)

I’m not sure what “racial equality” means. I promise you equal opportunity, not equal outcomes. And equality of outcome drags everybody down to the lowest common denominator.

We also see Sotomayor going for the “Well, the court has already decided the issue. It is settled law.” Of course —Dred Scott v. Sandford, 60 US 393 (Supreme Court 1857) was also settled law, until it wasn’t.

The goal oriented leftest all have this mind set that once they win, the battle is over. The “won” with —Roe V. Wade, 35 L. Ed. 2d 147 (1973) and the losers were just supposed to shut up, go home, and let the adults have the field. That’s not how wars work.

You always have to remember that your enemy gets a vote on whether it is over, or not.

She talks about the important benefits of racial diversity. What is important about “racial diversity?” I want diversity of thought. I want a diversity of skills. Likewise, I have yet to see the color of a person’s skill determine their qualification for a task.

Taking a page from past justices that wanted a particular outcome, she focuses on “the vision of equality embodied in the Fourteenth Amendment”. Not the text, not the letter of the law, no she is interested in the “vision” of the law. Just as many people find extra rights in the Constitution, Sotomayor finds the right to discriminate today because of discrimination in the past.

…At the same time, American society was structured around the profitable institution that was slavery, which the original Constitution protected. The Constitution initially limited the power of Congress to restrict the slave trade, Art. I, §9, cl. 1, accorded Southern States additional electoral power by counting three-fifths of their enslaved population in apportioning congressional seats, §2, cl. 3,
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____

Holy cat turds, batman! What a way to slam the country that elevated her to the highest court in the land. If the United States was “structured around…slavery”, then it was in the battle the north was having to end slavery.

The last time I heard a leftest going on about the three-fifths clause, it was to complain that it treated slaves as “less human”. Here, Sotomayor says that three-fifths was too much. It should have been zero.

In reading her blog posting, she quotes from multiple books and less often from actual case law. It is almost as if the case law wasn’t there to support her position.

Here she quotes the constitution and then turns around and gets it wrong: That Clause commands that “[n]o State shall … deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1 It is “equal protection of the laws”. It is not “equality of outcome”. Everybody should be treated equally.

Sotomayor:

Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfill the Amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal. One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen
—id.

United States Senate:

On March 3, 1865, Congress passed “An Act to establish a Bureau for the Relief of Freedmen and Refugees” to provide food, shelter, clothing, medical services, and land to displaced Southerners, including newly freed African Americans. The Freedmen’s Bureau was to operate “during the present war of rebellion, and for one year thereafter,” and also established schools, supervised contracts between freedmen and employers, and managed confiscated or abandoned lands. The battle to establish the Freedmen’s Bureau, and then to extend the legislation one year later, was a major factor in the struggle between President Andrew Johnson and Radical Republicans in Congress over Reconstruction and the role of the federal government in integrating four million newly emancipated African Americans into the political life of the nation.
—U.S. Senate: Freedmen’s Bureau Acts of 1865 and 1866, (last visited Jul. 2, 2023)

The Senate says the Freedmen’s Bureau was there for all Southerns, including newly freed slaves. Sotomayor says it was a license to discriminate against non-colored people.

She continues with the standard leftest screed of “diversity is our power, but PoC just aren’t succeeding as well as all others. That means it is racist.”

…For years, the university has reported that inequities on campus remain. See, e.g., 4 App. 1564–1601. For example, Harvard has reported that “far too many black students at Harvard experience feelings of isolation and marginalization,” 3 id., at 1308, and that “student survey data show[ed] that only half of Harvard undergraduates believe that the housing system fosters exchanges between students of different backgrounds,” id., at 1309
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____

A survey at Harvard is more compelling than following the constitution? Did she really say that?

The Court today stands in the way of respondents’ commendable undertaking and entrenches racial inequality in higher education. The majority opinion does so by turning a blind eye to these truths and overruling decades of precedent, “content for now to disguise” its ruling as an application of “established law and move on.” Kennedy, 597 U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 29). As JUSTICE THOMAS puts it, “Grutter is, for all intents and purposes, overruled.” Ante, at 58
—id.

Which makes me want to pull up the opinion from the Firth Circuit The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.—United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023)

Her job is to follow the Constitution, as it is written. If she doesn’t like it, then she can hope that Congress changes the Constitution to her liking.

Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that “bedrock principles are founded … in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Nowhere is the damage greater than in cases like these that touch upon matters of representation and institutional legitimacy.
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____

I need help getting my chin off the floor. She really said that it is the conservatives that don’t follow the law, but instead their personal beliefs. She says that just because they lost last time, they shouldn’t keep battling.

She says: At bottom, the six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.—id.

Ok, I was surprised at the number of times that the court opinion wrote scathing rebuttals to the dissent. Here I see why. Sotomayor calls all 6 of the constitutional judges racist.

It is easy to see why so many feel that Sotomayor is a diversity hire from an affirmative action legacy.

I’ll leave you with the opening text of Justice Jackson’s blog posting:

Gulf-sized race-based gaps exist with respect to the health, wealth, and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations. Every moment these gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the “self-evident” truth that all of us are created equal. Yet, today, the Court determines that holistic admissions programs like the one that the University of North Carolina (UNC) has operated, consistent with Grutter v. Bollinger, 539 U. S. 306 (2003), are a problem with respect to achievement of that aspiration, rather than a viable solution (as has long been evident to historians, sociologists, and policymakers alike).

JUSTICE SOTOMAYOR has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial diversity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. Students for Fair Admissions (SFFA) has maintained, both subtly and overtly, that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants. See, e.g., Tr. of Oral Arg. 19.
—id.

Man is created equal. How you squander that equality is up to you.
My wife is a successful professional woman in the education industry. Her brother is a nearly homeless alcoholic and drug addict. They were created equal. My wife succeeded. Her brother failed.

Her sister isn’t as bad as her brother. She is only an alcoholic and a former drug addict. She stopped doing drugs when her body was no longer capable of buying the drugs she wanted. She is a failure.

Created equal, equal opportunity, and a level playing field. That is what we are promised. Jackson and Sotomayor are unhappy that their team doesn’t do well on a level playing field, so they want it tilted in their favor. Because putting your thumb on the scales of society is much fairer than actual fair scales.

Bibliography

Dred Scott v. Sandford, 60 US 393 (Supreme Court 1857)
Roe V. Wade, 35 L. Ed. 2d 147 (1973)
United States v. Rahimi, 61 F. 4th 443 (5th Cir. 2023)
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ (2023)
U.S. Senate: Freedmen’s Bureau Acts of 1865 and 1866, (last visited Jul. 2, 2023)
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2 thoughts on “In their own words”

  1. Liberals can’t present a logical argument so they use “talking points” and feelings….. educated morons…. Meanwhile We the People continue to set NICS records….

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  2. I have a question for Justice Jackson: When, then, will we be done?
    .
    If this (whatever “this” is – affirmative action, reparations, etc.) is to fix a current inequality of some form or other, I want to know the following: What is the inequity? How did you determine (aka how is it measured)? What is the end state, after which we may say it is done and return to a purely merit-based / non-preferential / racial-based subsidy / etc. approach? (Or, as someone on Arfcom put it, How much do we have to pay to never hear about racism, inequality, etc. ever again?)
    .
    If you demand reparations, affirmative action, or similar measures, but can’t or won’t give solid answers to those questions, then one of two things is true. One, you truly believe that those of the black / brown / whatever skin color can not compete with whites / asians / whatever on an equal basis, and can never truly be “equal,” in which case I ask you to present your evidence of same. If you can’t, well, that’s racism pure and simple right there. Or, you are trying to benefit one group at the expense of others. At which point it’s clear you have an agenda other than fairness and equality for all.

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