Patterico's Pontifications

11/1/2022

More on the Supreme Court Argument on Race-Based Admissions

Filed under: General — Patterico @ 8:06 am



Just a quick hit after hearing most of the arguments from yesterday:

The good guys win, 6-3. Roberts is solid on this. You have to hear the quaver of outrage in his voice as he questions the schools’ advocates to really feel it, but I think he comes down squarely for the plaintiffs.

Kavanaugh is for the good guys. He will make a huge deal out of Justice O’Connor’s “25 years” statement in Grutter. Kavanaugh is the fellow who will deliver for you but wants to look like the good guy.

Of the righty justices, Barrett’s vote seems least secure, but I think she will be OK. She seems fine with racial preferences in general but wants to limit them to the remedial context, which does not apply here.

Alito made a hilarious quip that was subtly about Elizabeth Warren, asking a UNC lawyer (I think) if someone could claim to be an American Indian if it was part of the “family lore” that she had American Indian ancestry.

Sotomayor comes across as none too bright. She keeps saying “stimulation” when she means “simulation” and thinks “de jure” (which she pronounces “de jour”) is the same as “de facto.” Which annoys Alito, which is hilarious.

The lefties talk a lot! But they will lose.

The Harvard advocates were much better, on both sides, than the UNC advocates. But Seth Waxman danced around the various items of proof that Harvard tries to put the thumb on the scale against Asians. The righties are not fooled.

Good guys win! 6-3 UNC case, 6-2 Harvard case.

26 Responses to “More on the Supreme Court Argument on Race-Based Admissions”

  1. I think that “the remedial context” is the right way to approach this. If you allow discrimination to pursue other goals, you will have a never-ending set of new goals to perpetuate the favoritism.

    It has been 50 years since the end of Jim Crow and the Affirmative Action process. Remaining disadvantages are from other (and continuing) injustices, such as the inner city school systems, which are perpetuated by the same people who favor continuing AA. There are clear other ways to approach these problems, all of which have been blocked by those profiting on the continuing misery.

    Kevin M (eeb9e9)

  2. Sotomayor comes across as none too bright.

    Again.

    Kevin M (eeb9e9)

  3. The Harvard case is more significant, as it focuses on private-sector discrimination wrt federal anti-discrimination law. This will have legs.

    Kevin M (eeb9e9)

  4. Preening Over Preferences
    As the Supreme Court hears oral arguments in two affirmative action cases, Harvard’s president virtue-signals in an email blast.

    “In a nauseating display of vanity and duplicity, Harvard president Lawrence Bacow defended the school’s use of racial preferences this morning in a blast email sent to all members, past and present, of the “Harvard community.”
    The occasion for that email was today’s oral arguments before the Supreme Court in two cases challenging Harvard’s and the University of North Carolina’s racial admissions policies. Harvard’s “legal battle” in defense of its racial admissions preferences has been waged on behalf of all of “society,” according to Bacow. Adopting the cadences of high moral oratory, Bacow notes that Harvard has been joined in that battle by society’s elites:”

    https://www.city-journal.org/harvard-president-defends-racial-preferences-in-open-letter

    Jake (798d2e)

  5. Alito’s “self-identification” quip should seal the deal in the minds of the public. It shows the sham that’s been going on for years. The Emperor isn’t wearing any clothes.

    NJRob (eb56c3)

  6. Sotomayor was appointed to fill a ethnic slot. It is incredibly ironic that she should defend AA as a positive good, as she would never have gotten this far in life on her merits.

    But of course people will object to the observation and/or point at Thomas, since denouncing Conservatives is immune from the “racist” card.

    Kevin M (eeb9e9)

  7. https://legalinsurrection.com/2022/10/affirmative-action-my-argument-against-racial-preferences-prevails-at-cornell-political-union-debate/

    When William Jacobson can break through the indoctrination present at Cornell, there’s still hope. Everyone knows that Affirmative Action is just racism, but it’s accepted because the “right people” believe it so. They’d never give up their preferential spots of course. That’s for the common people.

    NJRob (eb56c3)

  8. They’d never give up their preferential spots of course. That’s for the common people.

    That’s the crux of it, isn’t it? That white guy who is Harvard Class of ’85 already has his degree and is dialed into the old boy network, so there’s really nothing for him to lose by arguing in favor of affirmative action (especially since his own children will continue to get alumni admissions preferences at Harvard), and as you point out, that white female professor or administrator isn’t about to resign her cushy job so that a minority candidate can have a shot at it. So their support for AA strikes me as pretty hollow grandstanding, but that is a hallmark of woke progressivism.

    JVW (15c733)

  9. Sotomayor comes across as none too bright.

    I hope and pray that she writes dissenting opinions in both cases, just so we can see how she (and her law clerks) distort the law in order to obtain their preferred outcome.

    JVW (15c733)

  10. In fact what would be perfect is if the North Carolina case is an 8-1 outcome, with both Justices Kagan and Jackson reluctantly acknowledging that affirmative action no longer passes muster at public state-run institutions, and Justice Sotomayor writing some barely intelligible screed insisting that it must last until she says so.

    Actually, so that it doesn’t look like I’m unduly harshing on Justice Sotomayor, it would be awesome if the UNC case ended up 9-0, just to absolutely embarrass the higher education cartel. But I know that’s way unlikely and P’s 6-3 decision is probably going to be the outcome.

    JVW (15c733)

  11. Someone will waffle. 5-4.

    DRJ (b0685b)

  12. Where’s the leaker?

    No answers; no rulings.

    Suspend operations until the leaker is run to ground. A group of berobed bureaucrats that can’t keep track of a set of papers lacks the validity to dictate how 333 million citizens, who they work for and are paid by, should conduct their lives.

    Gallup poll finds trust in Supreme Court at historic low, down 20 points in two years

    WASHINGTON – Americans’ trust in the Supreme Court and its job approval ratings have significantly dropped in the last two years, reaching historic lows, a Gallup poll has found.

    https://www.usatoday.com/story/news/politics/2022/09/29/supreme-court-approval-trust-all-time-low-gallup-poll/8125842001/

    DCSCA (f4c5e5)

  13. Someone will waffle. 5-4.

    You’re probably right, DRJ, but maybe this decision will be more like Dobbs, where there will be a majority five votes (Roberts, Thomas, Alito, Gorsuch, Kavanaugh) to reverse Grutter, a concurring opinion that doesn’t quite go so far as to undo Grutter but would place further limits on the ability of public schools to use race as a determining factor (Barrett and Kagan), and a dissent which demands full affirmative action (Sotomayor and Jackson).

    JVW (15c733)

  14. If anyone waffles it will be Barrett, based on the oral argument, and I do not think she will, much.

    Patterico (8f41b2)

  15. Maybe issuing a decision against affirmative action will help with their approval rating? It’s fantastically unpopular.

    mikeybates (dd20f5)

  16. The democrat establishment has no answer except liberal whining to supreme court actions. This will further discredit them with the base of the party. The corporate donor class demands democrat party appeal to moderate independents and republican women and shun the party’s leftist base. The left will continue its slow take over of the democrat party as the biden/clinton corporate wing continues to flounder as moderates in swing district lose leaving the left more powerful in democrat caucus.

    asset (7ab5fa)

  17. If anyone waffles it will be Barrett, based on the oral argument, and I do not think she will, much.

    I can see her waffle on Harvard, but the UNC case is 14th Amendment. So, 5-3 on Harvard.

    Kevin M (eeb9e9)

  18. “subtly about Elizabeth Warren” ????

    Heck, everybody in the courtroom knew **exactly** who he was referring to. Listen to the tape and hear all the laughter.

    It’s too bad Alito didn’t pose that hypo to Seth Waxman and ask whether Harvard lets student applicants self-identify as Native American with no actual basis for such a claim.

    And Sotomayor? The Wise Latina who apparently doesn’t understand the difference between de jure and de facto segregation? But hey, compared to Jackson, Sotomajor looks like Scalia!

    LKB (e665a9)

  19. @16: This was the strategy the Goldwater people employed in the early 60s, knowing that the party base would flock top them once the “me-too” Republicans were exposed as collaborationists. And for a brief shining moment, they had their guy nominated. OF course the rank-and-file voted for Johnson and they lost badly.

    Then the Democrats tried this strategy in 1972, and if you think that Nixon won a landslide because they bugged the DNC, you got another think coming. McGovern was toast before the convention ended. The anti-alphebetism demonstration in the roll call was a metaphor for the unseriousness of the McGovern campaign.

    But fine, go with AOC. Maybe next time will be different.

    Kevin M (eeb9e9)

  20. Splitting the baby department:

    If the Court is moved by the remedi/al argument, they could rule that

    1) Remedial affirmative action can continue until 2028, when the exception will sunset (the “O’Conner Rule”)
    2) Race-based decisions for other purposes are unconstitutional.

    Kevin M (eeb9e9)

  21. OT- Game 3, World Series: batting practice in Philly. Too bad Houston hasn’t showed up show up to play yet; 7-0, Phils over Astros and it’s only the bottom of the 5th.

    DCSCA (f4c5e5)

  22. Links to transcripts and recordings: https://www.supremecourt.gov/oral_arguments/argument_audio/2022

    Kevin M (eeb9e9)

  23. Patterico – Thanks for taking on this difficult subject. I would like to add two points: First, affirmative action (as it is now called*) is, more often than not, bad for the people who supposedly benefit from it.

    A personal example: Suppose I had applied to Cal Tech, and they had admitted me to fill some quota. I had high test scores, and high grades, but had attended a small rural high school, with no AP courses, and little competition. My parents were generally supportive, but my mother knew little science, and my father had not even graduated from high school.

    I would have been years behind the other students at Cal Tech, and would have floundered. The university might have set up a special program for students like me, “rural studies” or something similar, but those of us in such a program would not have gotten a real Cal Tech education.

    Second, sadly I agree with George Will, who thinks Harvard and UNC will lose — and that most colleges and universities will continue to discriminate. Both Washington and California have passed initiatives against racial discrimination and — as far as I can tell from a distance — those initiatives have had almost no effect on policies at the public colleges and universities in those two states.

    (AIUI, “affirmative action” originally meant that corporations claimed that not only did they no longer discriminate, but they took affirmative actions by advertising in black magazines like Ebony and by sending recruiters to histoirically black colleges and universities.

    Jim Miller (85fd03)

  24. @19 Different demographics today. The democrat party left base is not trying to convince conservatives ;but overwhelm them with numbers. The abortion issue in conservative states will hopefully be remedied before these unwanted children fill the jails ;but also the voting booth with those who know first hand how rethugliKKKans treat children growing up on welfare. Everyday minorities increase and conservatives die off. Anti-vaxxers help decrease their numbers. The future is AOC!

    asset (c37f22)

  25. @23: I did get into Harvey Mudd, and some of those factors were true in my case (particularly my parents being uneducated). But I did have some support in HS, not so much in AP course but in independent study that I asked for and got. My biggest failing — and this happens with a LOT of bright kids — is that I had no study habits whatsoever. Wasn’t necessary in HS — except for the independent study, none of it was particularly hard.

    Somehow I graduated just the same. But I was well-founded in most subjects (math, science, English, history, etc). The Lit sides of my SATS and subject tests were slightly higher than my math.

    The real problems come when you admit people with serious holes in their education, and when you are getting candidates from inner-city schools, there may be serious/ institutional deficiencies. The colleges attempt to correct with tutors and special courses, but if the school is already a firehose this can be exhaustive. OTOH, those kids have much better study habits than I had, so who’s to say?

    Kevin M (eeb9e9)

  26. 1975, University of Illinois at Chicago Circle, $1,000 a year which included health insurance. My ACT score got me in automatically. My diploma from it got me into law school.

    Which may explain, fine schools that Harvard and UNC are, a “whom do you have to sleep with to get out of this movie?” feeling about having to sue to get into a college.

    nk (975258)


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