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In a 7-1 decision today, the Supreme Court of the United States deferred an ultimate decision on the constitutionality of the University of Texas' affirmative action plan for college admissions. Justice Kennedy's opinion of the Court determined that the lower court applied an overly deferential standard of review to the policy, and that the lower court should have the opportunity to apply the Court's more stringent precedents properly in order to determine if UT offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.  

[Justice Kagan recused herself, having participated in the case below as solicitor general.]

I previewed the case in February 2012 when the Court decided to hear it, and you should review that diary to understand the facts of UT's policy. In short, UT's admissions process beyond its Top Ten Percent policy included a Personal Achievement Index which in turn included a "special circumstances" element which could reflect the socioeconomic status of the applicant and his or her high school, the applicant's family status and family responsibilities, the applicant's standardized test score compared to the average of her high school, and the applicant's race.

According to the Court, the Fifth Circuit erred by treating the UT policy as having been adopted in good faith, and was overly deferential to the university's assertions regarding how the policy worked in practice and how necessary it was. While achieving racial diversity remains a constitutionally permissible goal, Justice Kennedy explained, a more searching review of such policies is required:

The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.”  Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.

Much more, including Justice Thomas going lone wolf (yet again), after the gnocchi:

In conclusion, Justice Kennedy wrote, a "strict scrutiny" standard of review means what it says:

Strict scrutiny must not be “‘strict in theory, but fatal in fact.’” But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
As Justice Scalia notes in a brief concurrence, Abigail Fisher did not ask the Court to overrule its precedent from Grutter that a compelling interest in the educational benefits of diversity can justify racial preferences in university admissions, so the issue was not ripe for review here. And in her opinion of the Court in Grutter, Justice O'Connor herself noted that "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." That's still 15 years from now.

Justice Ginsburg was the sole dissenter; she would have affirmed the UT policy under the Court's precedent:

Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. It is race consciousness, not blindness to race, that drives such plans. As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.”

I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.”  Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.”

Accordingly, I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the Uni- versity’s educational objectives. Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations.

Which leaves Justice Thomas' remarkable concurrence, and as he has done before in race-related cases, he goes his own way. In short, he sees no difference between the pro-diversity arguments of today and the pro-segregation arguments of the 1950s, and as he wrote separately in Grutter, would prefer that America finally listen to what he sees as Frederick Douglass' call to leave African Americans alone, and stop trying to help. Back then, he wrote:
Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:
“[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us… . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! … And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … [Y]our interference is doing him positive injury.” What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original).
Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators...
And today, he continued:
In our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 (“[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more ‘secure’ at a college of his own people”); Brief for Appellees in Davis 25–26 (“The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there”. This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.

The University also asserts that student body diversity improves interracial relations.  In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed”; Brief for Respondents in Sweatt 93 (“Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum”); id., at 97–98 (“The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare”); Brief for Appellees in Briggs 32 (“The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event” (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950), where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641 (“It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar”). It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.

And then he doubles down:
The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’ ”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”).

A century later, segregationists similarly asserted that segregation was not only benign, but good for black students....

You get the idea. It's worth reading in full, though none of his fellow justices signed onto this opinion.

What the Court's decision reflects, yet again, is the chief justice's consistent desire to have the Court speak with one voice on contentious issues whenever possible, as a way of maintaining its legitimacy and providing clarity to lower courts. But affirmative action will be back to 1 First St, NE, rest assured.

The Court will be back tomorrow at 10 AM EDT with more opinions. I'll have a write-up of some of today's other decisions later today.

Originally posted to Adam B on Mon Jun 24, 2013 at 09:07 AM PDT.

Also republished by Daily Kos.

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Comment Preferences

  •  Thanks Adam for your thorough review (7+ / 0-)

    of this case so we can follow! Much appreciated!

  •  Does the fact that SCOTUS punted... (2+ / 0-)
    Recommended by:
    DefendOurConstitution, ER Doc

    in this case suggest that they might do the same in say Prop 8 and/or DOMA?

    Just another faggity fag socialist fuckstick homosinner!

    by Ian S on Mon Jun 24, 2013 at 09:32:53 AM PDT

    •  I don't know that you can infer anything (0+ / 0-)

      about Prop 8/DOMA from this decision.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Mon Jun 24, 2013 at 10:16:00 AM PDT

      [ Parent ]

    •  Prop 8 probably decided on standing alone (0+ / 0-)

      The decision on Prop 8 will probably be the narrowest possible decision.  In my opinion, the Justices won't even reach the merits of the case, but rather will decide that the petitioners do not have standing to be litigants.  In other words, they will suffer no harm and therefore have no direct interest in the case.  Under Article III, there must be a case or controversy, and there is no case or controversy if one side has no stake in the matter.

      I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

      by ccyd on Mon Jun 24, 2013 at 11:57:31 AM PDT

      [ Parent ]

      •  that's seemed pretty obvious (0+ / 0-)

        from the start.

        •  To you and me, perhaps (0+ / 0-)

          but not to everyone.  Standing is a tricky issue.  It is difficult for lawyers and judges, so I don't think I am going out on a limb in suggesting the layperson might have difficulty with it, too.  Plus, I think many people look at the case more broadly -- Will there be same-sex marriage in California, or not -- and don't hone in on the precise leagal issues in the case, like whether the petitioners can show some sort of legal harm.

          If they have been reading Adam B.'s diaries, they probably get it, though.

          I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

          by ccyd on Mon Jun 24, 2013 at 01:43:11 PM PDT

          [ Parent ]

  •  In Thomas's choice of that Douglass passage (5+ / 0-)

    is Thomas asserting that affirmative action amounts to picking the rotten apples before they fall to the ground?

    IOW we don't want the good apples to be "contaminated" with wormy apples. Wormy apples being a metaphor for young blacks who he thinks really just belong in jail or dead anyway.

    "They did not succeed in taking away our voice" - Angelique Kidjo - Opening the Lightning In a Bottle concert at Radio City Music Hall in New York City - 2003

    by LilithGardener on Mon Jun 24, 2013 at 09:40:04 AM PDT

  •  Only remaining question on this case is (7+ / 0-)

    why it took the Supremes so long to release an opinion that essentially says the lower court needed to apply strict scrutiny.

    Unless like the drama...can't be because they were waiting on the Scalia concurrence.

    Cake or DEATH? Oh, I'll have cake, please.

    by wmtriallawyer on Mon Jun 24, 2013 at 09:41:13 AM PDT

    •  You never know, of course, but (7+ / 0-)

      it could be that they (the Chief?) were looking to get as close to a unanimous decision as possible since affirmative action is a contentious and controversial issue.  That could mean that there were some back-and-forth exchanges over the actual language of the opinion before they got all seven votes.

      Or perhaps the opinion changed over the discussion. Perhaps the conservatives wanted to simply rule that the UT program did not survive strict scrutiny, and the liberal wing wouldn't agree, and maybe after some months where there was no clear majority, the "we'll send it back, but this time use strict scrutiny" was a compromise position.  The fact that it was written by Kennedy, often a "swing" vote, and that it was very narrowly written rather than being a sweeping ruling, could suggest that.  

      But the real answer is that we'll never know, until at some point, decades from now, the papers of one justice or another are released.  

    •  SCOTUSblog had some speculation on that (5+ / 0-)
      Recommended by:
      wmtriallawyer, VClib, sk4p, dewtx, Pi Li

      in their live blog this morning:

      From Tejinder: There will be speculation about this for some time, but my guess is that the decision was rewritten at least once. The opinion is very brief, given how long it took. And I think one reason for that is that there was originally a much more ambitious opinion, but it failed to garner sufficient consensus, or maybe Justice Kennedy didn't like where he ended up with it. So I'm going to guess that it got rewritten. As I said, this is just my speculation, and we'll have lots more informed commentary, but I think it's a pretty safe bet that the scope of this opinion has changed substantially since it was first drafted.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Mon Jun 24, 2013 at 10:17:58 AM PDT

      [ Parent ]

    •  Is UT in a better position than other schools? (1+ / 0-)
      Recommended by:
      dinotrac

      I would think that you could run pretty good models with the 10%-er applications that could be used to project the makeup of the student body with and without the "bonus".

      I'll always be...King of Bain...I'll always be...King of Bain

      by AZphilosopher on Mon Jun 24, 2013 at 10:29:10 AM PDT

      [ Parent ]

      •  I like the 10% rule, which is clearly constitional (0+ / 0-)

        Regarding using race as one element to fill out the freshman class there has been much discussion, but no legal decisions that I am aware of, to determine how much "diversity" do you need on campus? Quotas are not constitutional, so what level of minority students must be included before race as a preference item is no longer constitutionally valid? That's a difficult question.

        "let's talk about that"

        by VClib on Mon Jun 24, 2013 at 11:22:29 AM PDT

        [ Parent ]

        •  You almost sound like CJ Roberts at argument (1+ / 0-)
          Recommended by:
          VClib

          The legal standard articulated in Grutter is "critical mass" -- it can't be a number or set-aside because, as you correctly note, numerical quotas are barred. Roberts seemed perterbed in oral arguments because he couldn't figure out what "critical mass" meant (though the cynic in me thinks he was trying to squeeze UT or the SG into equating critical mass with quotas, which would be grounds for throwing out the idea altogether).

          I wish they would look at the other side of the affirmative action coin and adopt a rule that mirrors UGESP (the federal guidelines for determining whether an organization's hiring practices show a potentially discriminatory pattern). That would bring college admissions more in line with private employer concerns, and provides a numerical basis (other than quotas or set-asides or population-mirroring) for determining "critical mass."

          ad astra per alia porci

          by harrije on Mon Jun 24, 2013 at 11:52:58 AM PDT

          [ Parent ]

          •  harrije - I don't think that's a good measure (1+ / 0-)
            Recommended by:
            Pi Li

            I don't think that admission to the top state university is the same as a private sector employer. Given that the minimum academic requirements significantly narrows the pool to start, it's a very different set of facts than employment with a large company. However, I don't have a good answer to this issue.

            "let's talk about that"

            by VClib on Mon Jun 24, 2013 at 12:32:17 PM PDT

            [ Parent ]

  •  I think that given the Court we (5+ / 0-)
    Recommended by:
    blue aardvark, blueoregon, sable, Loge, Adam B

    have today and the fact that Kagen was recused, this was probably the best result we could have expected from the Court.  Hopefully, the 5th Circuit will find the case moot.

    With the Decision Points Theater, the George W. Bush Presidential Library becomes the very first Presidential Library to feature a Fiction Section.

    by Its the Supreme Court Stupid on Mon Jun 24, 2013 at 09:53:11 AM PDT

  •  So Thomas argues that because people (5+ / 0-)

    have argued that discrimination was good for the oppressed that U of Texas policy is intended to discriminate against minorities?

    REALLY?

    Economics is a social *science*. Can we base future economic decisions on math?

    by blue aardvark on Mon Jun 24, 2013 at 09:57:08 AM PDT

    •  I think Justice Thomas' argument is that (4+ / 0-)
      Recommended by:
      ER Doc, Inspector Javert, VClib, Pi Li

      he thinks race-based decisions are always unconstitutional, regardless of whether you profess to have good intentions, and regardless of whether you think the race-based decisions hurt or help minorities.  

      •  And the reasons he gave for that arguement (5+ / 0-)

        are, so far as I can tell, based on the idea that if a bad person uses an argument the argument becomes bad.

        That's incoherent but as far as I can see that's what he is saying.

        If he's trying to say what you summarized him as saying he is doing an atrocious job thereof.

        Economics is a social *science*. Can we base future economic decisions on math?

        by blue aardvark on Mon Jun 24, 2013 at 10:08:13 AM PDT

        [ Parent ]

        •  I think the point that Thomas makes is that (2+ / 0-)
          Recommended by:
          blue aardvark, coffeetalk

          discrimination based on race is unconstitutional on its face. In his view trying to draw lines is a slippery slope that the SCOTUS should not pursue.  

          "let's talk about that"

          by VClib on Mon Jun 24, 2013 at 11:12:24 AM PDT

          [ Parent ]

          •  And where does Originalist Thomas find that (1+ / 0-)
            Recommended by:
            Tonedevil

            in the Constitution? The 3/5ths compromise?

            Economics is a social *science*. Can we base future economic decisions on math?

            by blue aardvark on Mon Jun 24, 2013 at 11:18:35 AM PDT

            [ Parent ]

            •  the Equal Protection Clause (4+ / 0-)
              Recommended by:
              VClib, blue aardvark, coffeetalk, Jahiegel

              And the language of Brown v Board of Ed:

              My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown v. Board of Education, O. T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 8, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief”). The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.

              This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and “public sentiment [was] opposed to the intermingling of white and colored children in the same schools.” Id., at 269. The Iowa Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” Id., at 277. “For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.

              I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.

  •  I take two things from this decision. (4+ / 0-)
    Recommended by:
    blue aardvark, Adam B, VClib, Pi Li

    1.  The Decision itself essentially says, "when we say strict scrutiny, we mean strict scrutiny, and you can't just take the institution's word for it."  

    2.  Justice Scalia issued an invitation for someone to challenge Grutter and seek a ruling that race-based decision making is unconstitutional, regardless of reason for the raced-based decisions.  I have no doubt that in the next few years someone will take him up on that.  

  •  Why would Thomas be the lone dissenter? (0+ / 0-)

    Doesn't that mean that he actually has to do some work, you know, to come up with whatever paperwork is needed to dissent?

    Which seems to go against his "do no work" raison d'être

    •  Didn't dissent... (1+ / 0-)
      Recommended by:
      dewtx

      Voted with the majority, but wrote his own opinion, going far beyond what anyone else would agree with.

      -7.25, -6.26

      We are men of action; lies do not become us.

      by ER Doc on Mon Jun 24, 2013 at 10:13:27 AM PDT

      [ Parent ]

      •  OK, my bad - I thought that "by going (1+ / 0-)
        Recommended by:
        ER Doc

        lone wolf" - that meant he was the "1" of the "7-1" thingee.

        Clearly I have to brush up on my understanding of legal parlance!

        •  It was a little confusing the way it was put... (1+ / 0-)
          Recommended by:
          Roadbed Guy

             Though this did actually represent Thomas going out of his way to do extra work. He apparently felt compelled to express his opinion that affirmative action harms blacks & other members of under-represented minority groups.
              It's not clear if Thomas is simply pulling the ladder up after himself, or if he has deep resentment against people who may have implied that Thomas got to where he is by affirmative action rather than pure merit...

          -7.25, -6.26

          We are men of action; lies do not become us.

          by ER Doc on Mon Jun 24, 2013 at 11:49:59 AM PDT

          [ Parent ]

    •  First, he didn't dessent. More importantly, he's (5+ / 0-)
      Recommended by:
      Loge, Adam B, VClib, jncca, Jahiegel

      the lone dissenter in a good number of cases.  I don't know why you think he has a "do no work" raison d'être, but his non-participation in oral argument doesn't mean he's not weighing in on these issues.  He's got a very particular ideology which requires him to to author his own opinions a good number of times.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Mon Jun 24, 2013 at 10:15:19 AM PDT

      [ Parent ]

    •  Roadbed Guy - in the long period of Thomas' (4+ / 0-)
      Recommended by:
      Adam B, ccyd, buffalo soldier, Jahiegel

      presence on the SCOTUS he has authored just as many opinions as anyone else. This notion that he does no work,or doesn't like to work, somehow based on his silence during oral argument, is uniformed and just wrong. We don't like his judicial philosophy, or what he writes, but to infer that he is lazy is offensive.

      In each session the Chief tries to even the work load in terms of authoring opinions. While it doesn't come out exactly even every term, any Justice who serves for a long period will write approximately the same number of opinions as any other Justice.

      "let's talk about that"

      by VClib on Mon Jun 24, 2013 at 11:31:10 AM PDT

      [ Parent ]

    •  I guess stereotyping Blacks as lazy... (2+ / 0-)
      Recommended by:
      Adam B, buffalo soldier

      isn't solely a right-winger thing.

  •  Thanks for the diary, AdamB. (2+ / 0-)
    Recommended by:
    blue aardvark, ER Doc

    A little OT, but isn't it time to change your sig line?

  •  Thank you Adam (6+ / 0-)

    I've was hoping you would post on this. And thanks for the part on Justice Thomas,  though he turns my stomach.

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by Denise Oliver Velez on Mon Jun 24, 2013 at 10:06:33 AM PDT

  •  Thanks for the diary. (2+ / 0-)
    Recommended by:
    blue aardvark, ER Doc

    SOS - Save Our Sigs!

    by blueoregon on Mon Jun 24, 2013 at 10:07:18 AM PDT

  •  I knew it (1+ / 0-)
    Recommended by:
    buffalo soldier

    this just proves my theory even more.

    they did not take 9 months to write this opinion.  it took 3. It took 6 months to write another opinion that none of us have seen, which is sitting either in Justice Kennedy's bin, or on Justice Ginsburg's desk.  It didn't get enough votes though at the end of the day.

    Now we wait to see what that opinion is until next year, when the former dean of Harvard Law School, Justice Kagan can hear the case with the rest of the court and provide the fifth vote.  

    I think at the end of the day Kennedy couldn't overrule Grutter just because the votes were there.

    My country, right or wrong; if right, to be kept right; and if wrong, to be set right. -- Senator Carl Schurz(MO-1899)

    by Adam Blomeke on Mon Jun 24, 2013 at 10:26:24 AM PDT

  •  I am musing out loud here, but I do wonder (0+ / 0-)

    what the effects of America's inevitable change in demographics will mean for this entire issue. Certainly the demographic changes will effect the GOP and make the redneck racists even more marginalized within society (if not within the GOP) -- but I am unsure what effects that change will have on the underlying philosophical viewpoints of issues of racism in the US.

    I confess I really don't know what it will bring.

    Just thinking out loud here . . .

  •  lol@Scalia (0+ / 0-)

    "You didn't ask me to, so I'm not. So neener, neener."

    I'll always be...King of Bain...I'll always be...King of Bain

    by AZphilosopher on Mon Jun 24, 2013 at 10:44:49 AM PDT

  •  What a funny country we live in. (0+ / 0-)

    In order to do the good-faith, non-evil thing, which is to acknowledge the continuing centrality (not just relevance, but centrality) of race in determining the life chances of individuals in our society, UT had to do something in bad faith, which was to create a laundry list of special circumstances in order to obfuscate their obvious and (see above) praiseworthy desire to continue to make race an important component of their admissions decisions.  So now   the courts are arguing about something about which there can be very little serious dispute, as a surrogate for discussing the overarching issue.  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Mon Jun 24, 2013 at 10:45:53 AM PDT

  •  Texas is in a special position with regard to (4+ / 0-)
    Recommended by:
    chrayatl, VClib, Adam B, jncca

    race based AA because it already has an utterly brilliant non-race-based affirmative action program.

    That top ten percent program applies to every high school in the state, wealthy and poor alike.

    What makes it brilliant is that it applies a single criterion to applicants: Success.  Whether you school was good or bad, your teachers brilliant or criminal, if you succeed to the point that you are in the top ten percent of your class, you are guaranteed admission to a Texas university.

    That doesn't automatically resolve all opportunity questions, but it does raise the bar for additional programs to demontrate that they are indeed narrowly tailored to achieve a permissible interest.

    LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

    by dinotrac on Mon Jun 24, 2013 at 11:01:14 AM PDT

    •  dinotrac - very well stated comment (1+ / 0-)
      Recommended by:
      dinotrac

      "let's talk about that"

      by VClib on Mon Jun 24, 2013 at 11:33:20 AM PDT

      [ Parent ]

    •  Not really (0+ / 0-)

      There are several potental flaws with what you describe as "an utterly brilliant non-race-based affirmative action program."

      First, is it the case that the top 10% in principally non-white schools is not populated disproportionatetly by white students?

      Second, is it the case that the top 10% in principally non-white schools have the same opportunity as the top 10% in prinicipally white schools to actually attend UT--e.g., beyond guaranteed acceptance, is there a scholarship program in place that ensures that students can actually enroll and complete a UT education?

      "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

      by Old Left Good Left on Mon Jun 24, 2013 at 12:23:41 PM PDT

      [ Parent ]

      •  Question 1 : is it? (0+ / 0-)

        Are you suggesting that poor whites are intellectually and academically superior to minority students?  I don't believe that to be the case.

        As to the second issue, there is a reather substantial set of federal grants and loans available to low income students.

        LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

        by dinotrac on Mon Jun 24, 2013 at 12:42:28 PM PDT

        [ Parent ]

        •  Of course not (0+ / 0-)

          What I am suggesting is that even in predominately Hispanic schools there is often a group of relatively privileged non-Hispanic students who tend to be represented disproportionately in the top 10%.

          Grants and loans, although helpful, do not equalize opportunity.

          "Well, I'm sure I'd feel much worse if I weren't under such heavy sedation..."--David St. Hubbins

          by Old Left Good Left on Mon Jun 24, 2013 at 03:10:47 PM PDT

          [ Parent ]

          •  In some districts that is likely to be true -- (0+ / 0-)

            along with relatively privileged latino students.

            I'm sure such districts exist.

            I'm also sure you've heard of "white flight", a phenomenon that means that 10% will reach a lot of minority students in poor districts.

            As to equalizing opportunity, you're right.  I'm not sure there is anything we can do to equalize opportunity, but...we can give kids a chance, provide them with the tools they need, and hope for the best.

            One thing to consider -- those top 10% kids, whatever else they may be, they are successful.  Whether or not their ACTs show it, they have managed to climb to the top of the heap in their schools, often under circumstances that would knock most of us flat on our butts.  In my view, that makes them worth betting on.

            LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

            by dinotrac on Mon Jun 24, 2013 at 04:03:43 PM PDT

            [ Parent ]

  •  Question for you, Adam... (0+ / 0-)

    (or any other lawyers out there) : In the last decade or so, we've seen a few notorious cases where the Supreme Court threw out FISA and/or Patriot Act lawsuits due to lack of standing. (Sorry, no links, but I'm sure you know the cases I'm referring to.) That is, the plaintiffs couldn't prove that they'd been harmed by the laws in question, because the information that would prove that they'd been harmed was kept secret under those very laws.

    So if proof of harm -- not just the possibility or likelihood thereof -- is needful to show standing, then how did this case ever reach the Supreme Court? Was the plaintiff ever informed that the only reason she was denied admission was because she was white? If not, she has no proof that she was harmed by this admission policy.

    I mean, the Supreme Court wouldn't ever be inconsistent, would it?

    Let us all have the strength to see the humanity in our enemies, and the courage to let them see the humanity in ourselves.

    by Nowhere Man on Mon Jun 24, 2013 at 11:12:50 AM PDT

    •  This question was raised actually. (1+ / 0-)
      Recommended by:
      Nowhere Man

      But I read on SCOTUSblog that the Court was unlikely to use this as its reasoning because the parties didn't not fully discuss it (this was before the decision was released).  But UT did say that the plaintiff was unlikely to get in due to her academic record so the case should be moot.  It might be worth a re-visit now that the case is continuing.

      One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

      by AUBoy2007 on Mon Jun 24, 2013 at 11:21:04 AM PDT

      [ Parent ]

    •  NM - standing has been raised in all of these (1+ / 0-)
      Recommended by:
      Nowhere Man

      cases going back to Bakke in 1978. The Court has taken the view that the student who was not admitted was harmed and therefore has standing, even though they might have since attended another university.

      "let's talk about that"

      by VClib on Mon Jun 24, 2013 at 11:37:23 AM PDT

      [ Parent ]

  •  Tipped & rec'ed (0+ / 0-)

    nosotros no somos estúpidos

    by a2nite on Mon Jun 24, 2013 at 11:14:05 AM PDT

  •  Gotta say (0+ / 0-)

    I really thought AA was gonna die with this decision.  The decision to punt suggests to me that the court may not be willing to kill it off completely.

    But who the hell knows.

    "Empty vessels make the loudest sound, they have the least wit and are the greatest blabbers" Plato

    by Empty Vessel on Mon Jun 24, 2013 at 11:40:40 AM PDT

    •  Well, it's not "dead" (0+ / 0-)

      but it seems to me that the "no workable race-neutral alternatives would produce the educational benefits of diversity" standard is very onerous.

      So any characterization of this decision as not having changed the landscape in any significant way would seem to be sorely misguided.

  •  Interesting rationale from Kennedy (0+ / 0-)
    The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.
    In other words, you can consider race in admissions as long as you don't consider race while doing it.

    I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

    by ccyd on Mon Jun 24, 2013 at 12:08:02 PM PDT

    •  Not how I read it (2+ / 0-)
      Recommended by:
      coffeetalk, jncca

      It's "you can't use race unless you can't get to a racially diverse result without using race."

      •  A little hyperbole never hurt anyone ;-) (0+ / 0-)

        I suppose this is about the best result we could hope for -- it keeps AA alive for another day.

        BTW, thanks for your analysis in these diaries.  Between my work and my four kids, I have little time for digesting these opinions.  I try to read them, but the kids monopolize the computers when I am home, and I am zonkered by 9:30.

        I do not feel obligated to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use -- Galileo Galilei

        by ccyd on Mon Jun 24, 2013 at 12:44:58 PM PDT

        [ Parent ]

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