B.L.U.F. A look at the recent Affirmative Action case before the Supreme Court.
Originally, I intended to take Jackson apart with her own words. Instead, this is the Constitutionalist on the Court doing it for me. Having read Roberts’, Thomas’ and Gorsuch’s opinion and concurrence, it is pretty obvious that they are not sitting silent anymore regarding the opinions issued by the least qualified justices ever(?).
It is sad when you look to Sotomayer for the “reasonable” and “well reasoned” opinion from the left.
It has been another bumper term for conservatives at the Supreme Court. We have a couple of amazing wins, again.
I want to start with the following:
ROBERTS, C.J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., filed a concurring opinion. GORSUCH, J., filed a concurring opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined, and in which JACKSON, J., joined as it applies to No. 21–707. JACKSON, J., filed a dissenting opinion in No. 21–707, in which SOTOMAYOR and KAGAN, JJ., joined. JACKSON, J., took no part in the consideration or decision of the case in No. 20–1199
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. ____ 8 (2023)
This defines this court. On one side we have Thomas, Alito, Gorsuch, Kavanaugh, Barrett and sometimes Roberts. On the other side we have Sotomayer, Kagan, Jackson. In any case of “social impact” you can be sure that the three of them will be lock-step.
The media constantly yaps about getting one of the conservative justices to join the left. It happens. I don’t like it when it happens. The conservative judges who move over that line do so because that is what the constitution says. Not because they want a particular outcome.
In the same way, we often hear about some nasty piece of legislation where the democrats are trying to get a rhino to betray us. When Joe Manchin didn’t vote lock step with the democratic machine, I had to check the temperature in hell.
Chief Justice Roberts wrote this opinion. He made no bones about his opinion of the critical thinking of Justice Jackson:
JUSTICE JACKSON attempts to minimize the role that race plays in UNC’s admissions process by noting that, from 2016–2021, the school accepted a lower “percentage of the most academically excellent in-state Black candidates”—that is, 65 out of 67 such applicants (97.01%)—than it did similarly situated Asian applicants—that is, 1118 out of 1139 such applicants (98.16%). Post, at 20 (dissenting opinion); see also 3 App. in No. 21–707, pp. 1078–1080. It is not clear how the rejection of just two black applicants over five years could be “indicative of a genuinely holistic [admissions] process,” as JUSTICE JACKSON contends. Post, at 20–21. And indeed it cannot be, as the overall acceptance rates of academically excellent applicants to UNC illustrates full well. According to SFFA’s expert, over 80% of all black applicants in the top academic decile were admitted to UNC, while under 70% of white and Asian applicants in that decile were admitted. 3 App. in No. 21–707, at 1078–1083. In the second highest academic decile, the disparity is even starker: 83% of black applicants were admitted, while 58% of white applicants and 47% of Asian applicants were admitted. Ibid. And in the third highest decile, 77% of black applicants were admitted, compared to 48% of white applicants and 34% of Asian applicants. Ibid. The dissent does not dispute the accuracy of these figures. See post, at 20, n. 94 (opinion of JACKSON, J.). And its contention that white and Asian students “receive a diversity plus” in UNC’s race-based admissions system blinks reality. Post, at 18.
The same is true at Harvard. See Brief for Petitioner 24 (“[A]n African American [student] in [the fourth lowest academic] decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black applicants in the top four academic deciles are between four and ten times more likely to be admitted to Harvard than Asian applicants in those deciles).
—id. n. 1
Attempts to minimize? That is very harsh language from one Justice to another. We see Justice Jackson attempting to lie with statistics and being called on it. If we say that there is a 25% failure rate, that sounds harsh. If we’ve only done 4 tests and only the first one failed, it is not so bad.
On the other hand, saying that 100s of people are dying at amusement parks it sounds pretty bad. Until you run the numbers and find that it 201 deaths over 20 years when amusement parks are handling millions of visitors each per park. (Busch Gardens Tampa Bay theme park averaged 4 million visitors per year from 2009-2019. It fell off during the panic.)
Jackson attempted the same thing. She claims that because 65/67 == 97.01% and 1118/1139 == 98.16% that Asian applicants are who actually have the advantage.
The importance of “The Question” is shown in footnote 2:
Title VI provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U. S. C. §2000d. “We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U. S. 244, 276, n. 23 (2003). Although JUSTICE GORSUCH questions that proposition, no party asks us to reconsider it. We accordingly evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.
—id. n. 2
Emphasis added. The court was not asked to give their opinion on Title VI vs. the Equal Protection Clause of the Fourteenth Amendment. Because they were not asked, they leave things as they currently are. This is an important takeaway.
Just because the Supreme Court doesn’t strike something down as unconstitutional, that doesn’t mean that it is constitutional. If they aren’t asked, they aren’t supposed to give an opinion.
This is why dicta is important. It tells the inferior courts(—The Constitution of the United States: A Transcription, National Archives, art. art. 3 § 1, (last visited Jun. 25, 2023)) how to rule in cases in the same areas. The idea being that the inferior courts will “do the right thing”, follow the lead of the Supreme Court.
The Supreme Court has said that there is a right to keep and bear arms. The inferior courts should follow that lead. Unfortunately, too many of the inferior courts would prefer that there was no individual right to self-defense.
Roberts takes another pot shot:
For that reason, one dissent candidly advocates abandoning the demands of strict scrutiny. See post, at 24, 26–28 (opinion of JACKSON, J.) (arguing the Court must “get out of the way,” “leav[e] well enough alone,” and defer to universities and “experts” in determining who should be discriminated against). An opinion professing fidelity to history (to say nothing of the law) should surely see the folly in that approach.
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S., n. 5
JUSTICE JACKSON contends that race does not play a “determinative role for applicants” to UNC. Post, at 24. But even the principal dissent acknowledges that race—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year. Post, at 33, n. 28 (opinion of SOTOMAYOR, J.); see also Students for Fair Admissions, Inc. v. University of N. C. at Chapel Hill, No. 1:14–cv–954 (MDNC, Dec. 21, 2020), ECF Doc. 233, at 23–27 (UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions); 3 App. in No. 21–707, at 1069 (observing that UNC evaluated 57,225 in state applicants and 105,632 out of state applicants from 2016–2021). The suggestion by the principal dissent that our analysis relies on extra-record materials, see post, at 29–30, n. 25 (opinion of SOTOMAYOR, J.), is simply mistaken.
—id. n. 6
Math says that about 700 in state applicants and 5,400 out of state applicants were determined solely based on their race.
This appears to be the gist of the dissents’ argument, as expressed by Roberts.
The dissenting opinions resist these conclusions. They would instead uphold respondents’ admissions programs based on their view that the Fourteenth Amendment permits state actors to remedy the effects of societal discrimination through explicitly race-based measures. Although both opinions are thorough and thoughtful in many respects, this Court has long rejected their core thesis. The dissents’ interpretation of the Equal Protection Clause is not new. In Bakke, four Justices would have permitted race-based admissions programs to remedy the effects of societal discrimination. 438 U. S., at 362 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). But that minority view was just that—a minority view. Justice Powell, who provided the fifth vote and controlling opinion in Bakke, firmly rejected the notion that societal discrimination constituted a compelling interest. Such an interest presents “an amorphous concept of injury that may be ageless in its reach into the past,” he explained. Id., at 307. It cannot “justify a [racial] classification that imposes disadvantages upon persons … who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.” Id., at 310.
—id. at 35
The liberals on the court believe that we have to enforce racial discrimination to combat racial discrimination. It reminds me of the often quoted line from Vietnam, “We had to destroy the village in order to save it.”
The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (JUSTICE JACKSON’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” post, at 14 (opinion of SOTOMAYOR, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.
—Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. at 36
Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent.
That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. Post, at 5 (opinion of JACKSON, J.). Indeed he did:
[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy, 163 U. S., at 559 (Harlan, J., dissenting).
—id. at 38–39
For the best fun in reading this opinion, just look at the footnotes. That is where they take shots at each other. There is also a nod from Thomas back to the Bruen opinion.