2023-07-02: Angry Again
On having serious reservations about the legitimacy of the Supreme Court
In my ongoing efforts to remain have at least a little levity with respect to ongoing events, I offer up my current frame of mind with a song from The Last Action Hero soundtrack:
For the last decade or so (arguably longer), the Supreme Court has at least one day a year where they drop some awful jurisprudence on us. We’ve just had that day for this term. I think Roberts is strategic about this; there’s always some decision like Moore v. Harper that gets announced a little earlier, where the court rules against some batshit insane legal argument (in this case, the independent state legislature theory) before ruling the other way on a number of other key cases.
Of Cakes and Web Sites
In 303 Creative v. Elenis, it’s not even clear that the court should have even taken the case. I’m not a lawyer, so I’m talking out of my ass, but it sure seems to me that the actual ruling, which uses a framework relying on freedom of speech claims, is…odd. I am almost always sympathetic to free speech claims, but one of the things you see in making free speech claims is that almost anything can be converted into a speech claim. A “for example”: the ridiculous notion that money is speech is used to overturn restrained campaign financing laws. Free speech protections should be broad and allow for a wide range of speech. But you can’t call everything speech or else the word—and the concept—has no meaning. And, as a lapsed historian, I think you have to be mindful—and this applies in Masterworks Cakeshop, as well—that a kind of discrimination, where there are individual discriminatory acts, can absolutely be weaved into arrangements of systemic discrimination. There is a reasonable argument to be made that this kind of discrimination has been more pervasive and more important to the American experience, than de jure bias.
Having No Legs To Stand On
Biden v. Nebraska is arguably more insulting as a decision. As Kagan’s dissent makes clear, this is another example where standing isn’t clear at all. You can multiply that by the ridiculousness of the major questions doctrine, which appears to be nothing but a get-out-of-jail-free card when the conservative majority doesn’t like the application of a particular law, even one that was explicitly drawn up to provide precisely the kind of action Biden took. Scott Lemieux (who, in contrast to me, does actually know what he’s talking about):
The Court ignored Article III’s requirement that it decide only “cases or controversies” when it granted standing to a party that suffered no injury from the policy being challenged. (There’s also a very strong argument that it also did so in yesterday’s other major case, when it decided a case based purely on hypotheticals — we will come back to that in another post.) And the Court also transgresses its boundaries when it engages in egregiously bad faith statutory “interpretation,” such as holding that Congress authorizing the Secretary of Education to “waive or modify” student loan obligations does not allow the Secretary to waive or modify obligations in ways the Court does not approve of as a policy matter.
Congress has the constitutional tools to hold the Court accountable. Alas, the combination of the Court having built up a lot of good will among American elites, it being the star chamber of one of the competitive national parties, and the malapportioned Senate make using these tools enormously difficult for the time being. If the Court keeps acting like this — and there’s no reason to think that it won’t — a showdown with the political branches is eventually coming.
I don’t think this is wrong. There is already a real legitimation crisis going on, but I suspect that crisis is only going to deepen.
Elite Discrimination
The two Students for Fair Admissions cases ended up as thoroughly unsurprising 6-3 decisions. I guess this is the one that hits closest to home for me, since I went to a school periodically (tw: racism) called the “University of Caucasians Lost among Asians.” When I was an undergrad, affirmative action was in place in admissions for the UC system, but when I came back as a (teaching) grad student, Prop 209 had been enacted and so the admissions profile at UCLA changed a bit.
Since I was a TA and a TF, I was running seminars or discussion sections and, frankly, in that situation, it’s helpful to have all the diversity you can get in the room. As a teacher, you have to be very careful about not needing to rely on one student to be the voice of whatever group(s) they are a part of—and you need to be able to teach in a way that doesn’t rely on having a perfectly representative sample of the population to be able to teach. But these are discussions; it helps to have a range of perspectives in the room, just so you don’t miss something. And, yes, that extends to conservatives, although I am not sure how that plays out in the classroom now. Twenty years ago, several of my favorite students were among my most conservative. Including, for example, the Asian Christian Evangelical Science major (Hey, Andrew!) who was regularly shocked or bemused by the content in the Sixties Cluster, but also took it seriously enough to be smart and analytic about it. Another of my grad student friends (who was to my political left) TAed a class with Ben Shapiro, and he regularly said that Shapiro was a useful guy to have in the room. I gather that Shapiro remembers his time at UCLA differently, though.
I don’t know that I have specific things I want to say about the decision, beyond the fact that this pretty clearly overturns Grutter v. Bollinger and, to an extent, Bakke. So much for balls and strikes.
While I dislike the decision, I do agree with Paul Campos that I am not sure that it’s going to make a big difference. Only a small proportion of colleges and universities are selective in any meaningful way. While there’s a tendency to think of these decisions as being binary, if you get rejected from any specific university, it isn’t as though you are then taken out of the educational system entirely. If you don’t get into Harvard, maybe you go to Penn. If you don’t get into UNC, maybe you go to NC State. If you don’t get in at UCLA, maybe you go to UCSD. These tend to be marginal differences that matter primarily to a small proportion of people. I am in that group, so I feel it, but I have to admit that this matters a lot less to the average American. To those universities, it does matter, in that even your orchestra doesn’t need 200 concertmasters and your softball team doesn’t need 50 shortstops. It won’t be as effective as using race as a specific weighting factor, but the schools will look for other mechanisms to build diverse, well-rounded classes.
Ultimately, I think perhaps the most important point in all of this is something that Tim Burke points out (yes, I know I say this sort of thing a hell of a lot). While the revealed policy preferences of Americans are usually well to the left of its voting habits, affirmative action is not one of those issues:
The most complex and inchoate thought I have is that everyone inside the world of higher education who favors affirmative action in some form has just got to reckon with the ambivalence of a significant majority of Americans about the specific practices that defined that concept over its lifespan.
That ambivalence shows up consistently in polls. Folks on the liberal-left end of the political spectrum know that almost all of what the current Republican Party is slinging is unpopular with a majority of the electorate, and are prepared to make up as much political ground as possible because of that. But in this one case, the shoe is on the other foot.
That doesn’t mean we should give up on the goals embedded inside affirmative action, but it’s time to rethink that program of action and not just because of a need to adapt to the Court’s ruling. We have to understand what it is that makes a majority uncomfortable—including more than a few Americans from underrepresented racial groups.
The phenomenon here, I think, is the John Roberts quote: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It’s a sophomoric understanding of America’s racial history, but it’s an easy case to make. It’s also roughly the equivalent of starting a Monopoly game by saying “You get $200, Baltic Avenue, and Mediterranean. I get $2000, the railroads, Park Place, and Boardwalk.” This difference in how we see the world is one of the main reasons we have so many unsolvable political problems in America.
Jay Caspian Kang and a Few Random Thoughts
I know this is kind of a random aside, but this case has really underscored for me how disappointing it’s been for me to see Jay Caspian Kang really lean in on the IDW stuff. The idea that no one is talking about the Asians is weird; it seems to me that the whole point of both of these cases was to race-wash them. Asians unquestionably have been discriminated against historically, and they will benefit from this specific decision, but it’s of a piece with a number of other legal maneuvers that are…let’s say that they are not primarily designed to help the Asian population. He points out that using race at Harvard has helped upper-middle class African immigrant proportionately more than African-Americans descended from slaves, which is true and not exactly what we would have wanted. This carries over nationally; many of the minority students at elite universities are wealthier than the population as a whole. Presumably, this kind of thing is why Noah Smith talked about affirmative action as being a “bizarre racial spoils system.” In a smart, just country, we would recognize that systems like this are always going to be imperfect and we would engage in “bold, persistent experimentation” to get it a little more right. If you want to be au courant, just call it Agile Governance.
But I like Kang; his Free Darko and the first Grantland pieces on Jeremy Lin were great. The pieces he did for Vice were mostly very good; his Grantland profile on Don King is one of the smartest things I’ve seen written about boxing. I’m not much of a gambler, but I have a certain amount of respect for anyone who spends that much time at the Commerce Casino—though I am also happy for his that he seems to have his gambling problems licked. All that given, he spend a lot of times these days doing a kind of bro-y anti-wokeness spiel. His writing voice has always been a little bro-y (Grantland, y’know), but right now, I feel like we’re getting about half of the Kang real deal and about half warmed over IDW stuff.
Burning Any Credibility I Ever Had
I am going end this with a pro-affirmative action call to unity by a band from Tallahassee that regularly took up themes of Christian theology. Ladies and gentlemen, I give you…Creed:
No, I don’t especially love the band. Honestly, though, I am on board with Southern Christian boys singing “We may rise and fall/But in the end we’ll meet our fate together.”