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When People will not be Judged by the Color of their Skin, But On Where Their Ancestors Were Judged by the Color of their Skin

The Wall Street Journal had a piece that made reference to this story in the Cornell Daily Sun:

Martha E. Pollack, nearing the six-month mark of her presidency, is facing her first major test at Cornell after hundreds of black students, responding to the arrest of a student who may be charged with a hate crime, marched into her office last week and hand-delivered a series of demands.

The most interesting of the demand is:

We demand that Cornell Admissions to come up with a plan to actively increase the presence of underrepresented Black students on this campus. We define underrepresented Black students as Black Americans who have several generations (more than two) in this country.  The Black student population at Cornell disproportionately represents international or first-generation African or Caribbean students. While these students have a right to flourish at Cornell, there is a lack of investment in Black students whose families were affected directly by the African Holocaust in America. Cornell must work to actively support students whose families have been impacted for generations by white supremacy and American fascism

That brings to mind this piece in the NY Times in 2004, or this one in the Chicago Tribune by Pullitzer Prize winner Clarence Page:

Harvard law professor Lani Guinier and Henry Louis Gates Jr., chairman of Harvard’s African and African-American studies department, reported that 8 percent, or about 530, of Harvard’s undergraduates are black, but somewhere between one-half and two-thirds of them are “West Indian and African immigrants or their children, or to a lesser extent, children of biracial couples.”

Not counting those who are classified as “foreign students,” Guinier and Gates said, only about a third of the students classified as “black” at the nation’s most prestigious university were from families in which all four grandparents were born in this country.

I was not surprised by those findings. Like many other African-Americans, I have been noticing for years how the children of black immigrant families tend to be much better represented among high school honor-roll achievers than their native-American black counterparts are.

Now that they are showing up in disproportionate numbers at selective colleges like Harvard, both advocates and opponents of affirmative action are raising a howl in their various ways.

Page goes on:

Now Harvard has to ask itself what its affirmative action plan is supposed to accomplish. If its goal is simply “diversity,” it may not matter how American the roots of its black and brown faces happen to be. But if its goal is to address historical racial inequalities in American life, Harvard may have to take black ethnicity into account in the way that some institutions have argued over which nationalities should be counted as “Hispanic.”

A bigger question to me is this: Why are black students whose families have been in America for generations being left behind by newcomers, including black newcomers from other countries?

Gates plans to organize a study group around that question. I can offer the group one easy possibility, no charge: Immigrant kids work harder.

They work harder, in part, because their parents work harder–and their parents work harder because of their relentless optimism: Where others might see a dead-end job, immigrants of all colors see an entry-level opportunity.

I don’t want to comment on Page’s conclusions; that may be a post for another time. I do note that what probably derailed the thought process brought up by Lani Guinier, Henry Louis Gates Jr., and Clarence Page was the meteoric rise of Barack Obama. But Barack Obama is no longer president. Furthermore, it isn’t clear that Americans descended from American slaves are better off relative to other Americans after eight years of Obama than they were before his presidency.

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Conservative Legal Movement Week at the Supreme Court

This is Conservative Legal Movement Week at the Supreme Court.  (Okay, even more so than most weeks.)  Things really get going tomorrow, when the court will hear argument in two legislative-redistricting cases at the behest of (surprise!) Conservative Legal Movement voters represented by Conservative Legal Movement lawyers whose names on a petition for review (a “petition for certiorari”) guarantee that five justices will read the petition.  (All but one is a member of the usual-suspect crowd; the other one is a St. Louis-based lawyer I’ve never heard of, but presumably is active in Republican election-law circles.)

Things get going today with a state-sovereignty case, but this case is peanuts—just a small appetizer—compared with what will come tomorrow.  The first one tomorrow, Harris v. Arizona Independ­ent Redistricting Commission, is the one that will be argued by the St. Louis lawyer.  You can read about it here.  It is, best as I can tell—and I make no claim whatsoever to expertise in election law—by far the less far-reaching of the two redistricting cases, and because an outcome favorable to the petitioners, it seems to me, might not be an unalloyed long-term (or even short-term) victory for Republican candidates, an outcome in favor of the petitioners may not be in the bag.

Not so for the effects of a victory for the petitioners in Evenwel v. Abbott, Governor of Texas, the second case to be argued tomorrow.  Its purpose is to have the Supreme Court declare that legislative districts, federal and state, must be apportioned according to the number of eligible voters in each district, rather than the number of residents in each district as indicated by the Census.  So minors, recent immigrants or immigrants who have not yet gone through the naturalization process, convicted felons, and elderly Blacks who cannot produce a birth certificate from Nowhere County, Mississippi, will lose their status as legal constituents of the policymakers formerly known as their congressional or state legislative representative.

Which presumably would permit them to stop paying taxes, including sales taxes, since, y’know, the founders would be upset at the idea of taxation without representation.

This is outright crazy.  But it also in right in line with John Roberts’ own recent, surprising public statement about what his modus operandi is in joining with his four Reagan-era Conservative Legal Movement colleagues to make dramatic changes in broad areas of law: quiet.

As in, speak very softly and drive an armored vehicle (i.e., cases in obscure areas of election law and procedural and jurisdictional law the public has no clue exist) through the Democratic Party; labor unions; civil rights plaintiffs of the sort that benefited from the original purpose the Court stated for its “strict scrutiny” equal protection pronouncements that the Court now regularly disavows without actually mentioning that it is doing so (more about this, maybe, in a follow-up post about Wednesday’s argument at the court); civil rights plaintiffs who are challenging state and local authorities’ bald and routine violations of even the most obvious and fundamental civil and human rights; and ordinary consumers.  (Ordinary is a careful selected term or art here, but I won’t elaborate in this post.)

Roberts and his compadres  have, since the ’80s,  had a list of perhaps 10 areas of law that they they are hellbent on using the Supreme Court and the lower federal courts to rewrite.  It is the Federalist Society’s unabashed agenda.  But always—first, foremost and forever—their priority is using the Supreme Court to try to orchestrate a permanent Republican majority across the full breadth of elective office: the presidency, both houses of Congress, state governorships, state legislatures, and various county and municipal offices.  And Roberts, whose very essence is stealth, does not ever take is eye off that ball, even if his more intemperate or less skilled colleagues do.  If Roberts miscalculates on whether or not the public will notice a momentous opinions replete with bizarre statements—Citizens United, for example, in 2010—it may be time two years later to uphold much but not all of the Obamacare statute, since that issue wasn’t an election-law case and ruling striking the ACT down did have the potential to inure to the benefit of Democrats in the 2012 election.  Including to Obama.

So I guess I should add one more reason why the petitioners in Harris might lose: The opinion in Harris and the opinion in Evenwel will be released either on the same day or a day or two apart with Harris released first.  Seeee, everyone?  The Evenwel ruling wasn’t partisan.  Got that?

A coup by any other name—Supreme Court capture of the electoral process, I guess, would be the name—smells as rotten.

The case argued on Wednesday—and it is the only case to be argued that day; usually the Court hears arguments in two cases on the very few days each year on which it hears arguments—Fisher v. University of Texas at Austin, is a standard-issue affirmative-action-in-public-universities case, although this case is back for its second turn at the Court.

I might write more about this later today or tomorrow in a follow-post (Conservative Legal Movement Week at the Supreme Court, Part II, I guess), but this case has a remarkable peculiar twist added only at the Supreme Court level—normally problematic procedurally, but, well, y’know ….  This time around, aided by the suggestion of the dissenting judge (an aggressive, high-profile Conservative Legal Movement G.H.W. Bush appointee) on the lower appellate court panel that ruled in favor it the university and its admissions criteria, the petitioner, Abigail Fisher, a white graduate of a public high school in a wealthy Houston suburb, in claiming an affinity with African-American students who were admitted to the university.

It’s an insult to those students, she now claims.  And since for several reasons, including that her grades and SAT score were not high enough to gain her admission even without the school’s use of race in any aspect of the admissions policy, and that she long ago now graduated from another university (a weaker problem than the first, in my opinion), she may otherwise lack legal “standing”—an actual live and particularized injury—to pursue the case, she wants to piggyback on the insult she suddenly says was perpetrated on the Black students under the university’s admissions system the year she applied and admits now under the same policy.  She’s concerned about the university’s insult to the Black students they admit!

This is far more clever than her earlier piggybacking on Supreme Court petitioner Jennifer Gratz, the white salutatorian of her working-class suburban Detroit high school whose SAT score apparently wasn’t quite up to the par set by the children of more upscale folks, and who eventually won her case against the Supreme Court against the University of Michigan at Ann Arbor in 2003 (after she, too, had graduated from another university) in a case challenging not the university’s preference for the children of those who looked to be able to pay the tuition without financial assistance from the school or student loans, but instead the university’s racial affirmative action program.  Because, well, that was the only civil rights avenue available to her–although once the original purpose of the “strict scrutiny” test for determining equal-protection lawsuits, as has now occurred, the automatic application of strict scrutiny to any equal protection claim based on race, but not to most other grounds for a claim  of denial of equal protection, itself violates equal protection.  I would think.

But on the piggybacking-on-the-insulting-the-Black-admittees’ ground, three of the current justices, and (I think) Roberts as a lawyer for the Bush folks (I think), did think George W. Bush had legal standing to invoke the voting rights of Florida Republican voters whose votes would be diluted if all those ballots with hanging or pregnant chads used by Democrats in counties and precincts that hadn’t cleaned their punch-card equipment since the Civil War were counted.  Now, I’ll grant that the Bush v. Gore opinion did limit its ruling to that case only.  But there are other Republicans in need of such a courtesy from the Court, too, and Abigail Fisher seems to be one of them.  “Standing” on that ground is probably in the bag for Fisher.

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The REALLY ANNOYING Don’t-Wanna-Subsidize-Wealthy-Kids’-College-Tuition Canard [With fun update!]

Hillary Clinton’s performance wasn’t as clean or as crisp as her last one. Among other things, she invoked 9/11 in order to dodge a question about her campaign donors. But she effectively made the case that, though Sanders speaks about important questions, his solutions are ultimately simplistic and hers are better. Instead of railing about breaking up the big banks, focus on identifying and moderating the biggest risks to the financial system. Instead of making college free for everyone, increase access to those who need it and decline to subsidize wealthy kids’ tuition.

Can anyone really imagine Bernie Sanders in the White House?, Stephen Stromberg, Washington Post, Nov. 15

Stromberg, a Washington Post editorial writer who also blogs there, is an all-but-official Clinton campaign mouthpiece who last month, in a blog post and (unforgivably) a Post editorial (i.e., commentary with no byline, published on behalf of the Post’s editorial board) baldly misrepresented what Clinton campaign spokesman Brian Fallon on Tuesday misrepresented about Sanders’ single-payer healthcare insurance plan, but from a different angle: Stromberg said that the cost of the single-payer plan would be in addition to the cost of healthcare now.  Actual healthcare, not just insurance premiums.

According to Stomberg and the Post’s editorial board then, hospitals, physicians and other healthcare provides would receive full payment from private insurers and also full payment from the government.  And employers, employees and individual-market policyholders would continue to pay premiums to private insurers while they also paid taxes to the federal government for single-payer—double-payer?—insurance.

A nice deal for some but not, let’s say, for others.  Also, a preposterous misrepresentation of Sanders’ plan.

Fast-forward a month and Stromberg, this time speaking only for himself (as far as I know; I don’t read all the Post’s editorials) and for the Clinton campaign, picks up on Clinton’s invocation of the horror of the public paying college tuition for Donald Trump’s kids.  But since he probably knows that Trump’s kids no more went to public colleges than did Clinton’s kid, he broadens it.

Instead of making college free for everyone, increase access to those who need it and decline to subsidize wealthy kids’ tuition.  Good line!  At least for the ears of voters who are unaware that public universities, like private ones, quietly skew their admissions processes to favor the kids of parents who likely can pay full tuition simply by switching the funds from a CD or other savings account into a checking account at the beginning of each semester, thus removing the need for the school to dig into its endowment fund to provide financial assistance.  Or to worry about whether the student will have that loan money ready at the beginning of each semester.

Which is why Jennifer Gratz, salutatorian at her working-class Detroit suburb’s high school, whose extracurriculars included cheerleading but probably not a summer in Honduras assisting the poor, was denied admission to the University of Michigan back in 1995.  And why she sued the University in what eventually became a landmark Supreme Court case challenging the constitutionality under the equal protection clause of UM’s affirmative action program.

She did not challenge the constitutionality of the U’s almost-certain, but unstated, admissions policy that would ensure that the freshman class had a substantial percentage of students from families wealthy enough to pay the full tuition.

Y’know, the ones wealthy enough to pay for SAT tutoring, SAT practice course and if necessary more than one SAT exam.

What especially angers me about this let’s-not-subsidize-wealthy-kids’-college-canard is that it uses disparities in ability to pay the tuition as a clever way to ensure the admissions status quo.  Or something close to the status quo.

In her and her campaign spokesman’s statements in the last several days—most notably her “Read My Lips; No New Taxes on the Middle Class, Even $1.35/wk to Pay for Family and Medical Leave” declaration, but other statements too—she’s overtly declaring herself a triangulator.  And some progressive political pundits are noticing it.  Yes!*  They!**  Are!***  And Sanders needs to start quoting these articles, in speaking and in web and television ads.

I said here yesterday that Clinton is running a Republican-style campaign.  But it’s not only its style–its tactics–that are Republican. Watch her edge ever closer on substance as well.  Which is the way she began her campaign last spring and early summer, until it became clear that Sanders’ campaign was catching on.

——

*Hillary Clinton Attacks Bernie Sanders’ Progressive Agenda: Why is she talking like a Republican?, Jonathan Cohn, Senior National Correspondent, Huffington Post, Nov. 17

**Hillary Clinton Hits Bernie Sanders on Taxes, Paul Waldman, Washington Post, Nov. 17

***Under attack at the Democratic debate, Hillary Clinton plays EVERY POSSIBLE CARD, Alexandra Petri, The Washington Post, Nov. 14

——

Edited for clarity, typo-correction–and the addition of the last sentence.  11/19 at 8:23 pm.  [Oh, dear.  That’s addition, not edition. Can’t seem to avoid the typos.  I need an editor!]  Corrected 11/20 at 9:52 a.m, after Naked Capitalism linked to the post.  Damn!  

Oh, well.

FUN UPDATE: Yves Smith was kind enough to republish this post on Naked Capital this morning, and there are a few terrific comments to it there.  But I can’t resist reprinting this one, from rusti, as an update the post here at AB:

rusti November 20, 2015 at 5:07 am

We can’t, in good conscience, continue to pay for public works projects knowing that The Donald’s kids are driving on these roads, getting their electrical power from these lines, sourcing water from the same pipes and so forth. A few (moderate) tax rebates to impoverished families to allow them to build out their own infrastructure ought to do the trick.

Perfect.  Question to self, though: Why didn’t YOU think of that, Beverly??

Added 11/20 at 10:18 a.m. 

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The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race. (Except, that is, when the discrimination favors whites over racial minorities.)

 

The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race.

— Chief Justice John Roberts, Jun. 28, 2007, writing for a four-justice plurality in Parents Involved in Community Schools v. Seattle School District No. 1.

Given that statement of his own belief, and his concomitant pronouncement that discrimination by a state or local government on the basis of race necessarily violates the Fourteenth Amendment’s equal protection clause and that therefore the federal judicial branch is entitled to strike down as unconstitutional any law or policy that discriminates on the basis of race, I expect that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.

Let me explain.  Or, better, let me borrow part of the nicely succinct explanation in an editorial in today’s New York Times, which begins:

Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court is facing this week in the case of Schuette v. Coalition to Defend Affirmative Action.

Some background is in order.  In 2003 the Supreme Court upheld as constitutional the race-conscious admissions policy at the University of Michigan law school.  But at the same time, in a companion case, the court struck down a slightly different affirmative action policy for admissions to the University of Michigan’s first-year undergraduate class, as weighting racial minority status too heavily in order to attain more racial diversity.

In resolving these cases, the court applied its longstanding “strict scrutiny” test to evaluate the equal-protection constitutionality of these affirmative action programs, a test that originated in the 1940s as a constitutional protection under the equal protection clause for members of “suspect,” or “invidious” classifications.  Which did not include whites as a racial group, because, well, the purpose of the “strict,” or “heightened,” scrutiny under the equal protection clause was to protect politically powerless, stigmatized, possibly stereotyped, and historically discriminated-against groups.  Ordinary, everyday whites were the racial majority, not a minority, and clearly the most politically powerful racial group.

The strict-scrutiny standard, which is the highest level of what is now, at least formally, a three-tiered scrutiny hierarchy, requires that courts strike down laws or government policies that targeted suspect groups for negative consequences because of the invidious and immutable classification, initially concerning a fundamental constitutional right–the right to vote, for example–and then for any law or governmental policy, unless the law or policy serves a “compelling governmental interest”.  In which event the means chosen to accomplish the compelling governmental interest must be narrowly tailored so as to have no impact beyond what is minimally necessary.

Originally, the only other level of court scrutiny under the equal protection clause was “rational basis” scrutiny: as long as the government could state some conceivably rational, or legitimate, governmental purpose for the law or policy, the law or policy was fine.  “Rational basis” scrutiny, in other words, is another phrase for anything goes. Later, a middle tier was added–intermediate scrutiny–which applies to gender-based discrimination.

So the trick if you are challenging the equal-protection constitutionality of a law or government policy is to squeeze your discriminated-against class into the suspect-classification category. Which is hard to do when your discriminated-against class is the majority, and most politically potent, race.  But not so hard that it cannot be done, if you are 1980s-90s era Legal Movement conservatives at a time when 1980s-era Movement conservatives dominate the federal bench overall or at least hold a majority on the Supreme Court.  Madison Avenue-ishly marketed as reverse-racial-discrimination programs, race-based affirmative action programs were (and remain) on the Reagan-era-conservatives’ Legal Movement hit list.

So done, it was, initially in a 1986 case called Wygand v. Jackson, in which the court struck down as violating the equal protection clause a school board’s consideration of race in determining financially-necessitated teacher layoffs, holding that racial and national-origin diversity in the makeup of the teaching staff was not a compelling enough governmental interest to survive under the strict-scrutiny test, nor, the Powell opinion says, does the level of scrutiny “change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.”

Nor, the court’s majority held in 1995, in a case called Adarand Constructors v. Pena, does the extent of the political power of the discriminated-against group change the level of scrutiny.  The white owners of Adarand Constructors, Inc., challenged an affirmative action program for federal contractors as violative of the Fifth Amendment, which has a due process clause that applies to the federal government, but the Supreme Court has interpreted that due process clause to implicitly require equal protection, in the same way as the Fourteenth Amendment’s explicit and separate equal protection clause applies to (and only to) the states.  White-owned companies vying for federal (or state or local) government contracts, the court held, cannot be disadvantaged in the competitive application process for government contracts by an affirmative-action program seeking to increase the very low number of racial-minority-owned government contractors.

The Koch Brothers could win a reverse-discrimination lawsuit, should they ever apply for any government contract or other special treatment for their businesses through a competitive application process.  Or should their lobbyists ever fall short, and the Kochs learn that racial minorities get more business subsidies than the oil and gas industries.

Or should hell freeze over. But I’m speaking in jurisprudential theory here., not in political theory.

So the suspect category for qualification for strict scrutiny, regarding race, is simply race.  Nothing else. Whites get to piggyback on the strict-scrutiny discrimination standard, instituted specifically and narrowly to protect racial and ethnic minorities, by simple virtue of the fact that white is a race.

Oddly enough, last spring there was a moment when it looked like the lack-of-political-power criterion was about to be restored as a prerequisite to strict-scrutiny classification.  Not the historically-discriminated-against criterion; just the lack-of-political-power criterion.  But it was notable because it was at least one Conservative Movement justice–Antonin Scalia, I believe, and one other, Roberts, I think–who invoked it.  During oral argument in at least one of the two same-sex-marriage cases (I can’t remember whether it was in both or only in one), Scalia and, I think, another justice noted that homosexuals are no longer without political power, as evidenced by their success in enacting same-sex marriage statutes in a sew states and obtaining favorable court rulings in a couple of other states. This, the justice (or justices) suggested, maybe should defeat the claim that anti-gay laws should be analyzed for muster under equal protection jurisprudence using the strict-scrutiny standard.

After all, Scalia said, strict scrutiny under equal protection jurisprudence requires a lack of political power to try to get the law changed; Adarand Constructors, be damned! For the moment, anyway. (Or it requires a violation of a “fundamental” constitutional right–a constitutional right expressly proclaimed by the court to be a fundamental one, and only certain select ones are–which is the only type of claim of denial of equal protection, other than one based upon membership in a particular group, that prompts strict-scrutiny analysis.)  And anyway, Scalia pointed out, the sole purpose of the Fourteenth Amendment, back when it was drafted and then ratified, was to protect people who had been slaves, or who were descended from slaves, or who were, or whose ancestors would have been, slaves had they lived in a state south of the Mason-Dixon line.

Scalia is an originalist, after all.  And he apparently when he said that, he had forgotten that Abigail Fisher, the unsuccessful white University of Texas/Austin applicant who challenged the constitutionality of Texas’s mild affirmative action freshman-admissions system for its state universities, and whose case had been argued to the court last October and was still pending last spring, was white and a resident of an upscale Houston suburb. In his dissent in Grutter, Scalia had written, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception”.  He reiterated that sentence in a one-paragraph concurrence when Fisher was decided in late June, the same week as the same-sex-marriage cases were decided. Fisher went as far as it could to kill affirmative-action programs at state colleges and universities without overruling Grutter.  The petitioner, Abigail Fisher, Anthony Kennedy and Scalia both noted, had not actually asked the court to overrule Grutter, but instead had argued that Texas’s program went beyond what Grutter allowed.  And, since Fisher was not a campaign-finance-law case, the court decided not to go beyond what the petitioner to the court had asked it to rule.

And anyway, there was that pesky problem of arguing the narrowness of the application of the strict-scrutiny equal protection standard in Fisher and then, for Scalia, Roberts, Clarence Thomas and SamuelAlito, blithely reversing course two days later in dissents in one of the same-sex-marriage cases, United States v. Windsor, which struck down the federal Defense of Marriage Act.  Section 1 of the Fourteenth Amendment, the section that contains the equal protection clause, does not specifically state that it applies to gays.  But neither does it say that its protections are limited to African Americans, or, for that matter, to racial discrimination. It says it pertains to all persons. Gays are persons.

But even if Scalia’s originalist view is accepted and the court suddenly reverts back to before the era of modern equal protection jurisdiction began in the early 1940s, and a majority of justices state that the equal protection clause prohibits only discrimination on the basis of race because that was how the amendment was understood when it was drafted and ratified–and that whites are decendants of American slaves, in the South and in Michigan–this would require them to uphold the Sixth Circuit Court of Appeals’ ruling in Coalition to Defend Affirmative Action v. Schuette that the Michigan voter initiative that passed in 2006 amending the state constitution to ban affirmative action programs in the state’s public universities itself violates the equal protection clause.

Here again I’ll borrow from the New York Times editorial:

Advocates of affirmative action sued the state on grounds that the amendment violates the United States Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.

For instance, an applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive and arduous process.”

Michigan, in response, argues that the amendment does not violate equal protection because it treats all races the same. But the Sixth Circuit opinion said the denial of equal protection is not in treating races differently in the university admissions process but instead in treating racial-minority interest groups differently from other non-racial-minority minority interest groups, in effectively changing the very nature of the political system itself only for those racial-minority groups.  Every other minority interest group can try to change a law or a government policy through the normal political process of lobbying or trying to defeat or elect certain candidates, including for the state’s universities’ publicly elected boards of regents or trustees. It certainly seems to me that this is pretty much what Section 1 of the Fourteenth Amendment prohibits, in its equal protection clause as well as its (admittedly moribund) privileges and immunities clause.

Last year, the United States Court of Appeals for the Sixth Circuit rejected that claim, striking down the amendment because it especially harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.

The Times editorial also notes the Sixth Circuit’s recitation of an appalling problem with this particular voter initiative–a problem to which I was witness. The editorial says:

This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. That was surely true in Michigan, where the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” according to the federal appeals court. In some cases, voters were tricked into believing that the measure actually supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”

Yes. Make that, Yes! As it happened, in the ten weeks or so leading up to the November 2006 election, I was spending quite a bit of time on the University of Michigan campus in Ann Arbor, and also was reading the student newspaper, the Michigan Daily, almost daily.  And I remember the utter dismay, on campus and in Ann Arbor and elsewhere among many in the surrounding area, at the widespread campaign to mislead about the very nature of the proposed amendment.

So for me, in some sense, tomorrow’s argument at the court will be personal.

The court has delineated the parameters of permissible public-university admissions affirmative action programs under its current equal protection jurisprudence, which, for what in my opinion is not a legitimate reason, privileges the rights of whites over, say, the rights of high school seniors who don’t have a parent who is an alum of the school. As the Times editorial says, and applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But at most universities, including public ones, they don’t have to lobby; alumni connections are considered in admissions. And though those who oppose that policy can lobby, and have lobbied, the university administration or its popularly elected governing board, at the University of Michigan and, probably at the University of Texas, it has been to no avail.  Not because those with alumni connections are a majority of the public, but because they have political and financial clout.

The Michigan state constitutional amendment is undeniably race-based discrimination in access to the normal political process.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.  And the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

We have these statements right from two horses’ mouths.  Or keyboards.

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Justice Kennedy Reads Angry Bear! Yup. There’s No Other Plausible Explanation for His Affirmative Action Opinion Today.

A longer-than-planned post on today’s Supreme Court opinion on state-college-admissions affirmative action programs.  (I’m up in Michigan’s Thumb region, sans cable and regular web service, and using my phone as a Wi Fi hotspot via the PdaNet app. I can attest that PdaNet is awesome.)  Here it is:

The headline on Politico reads, “SCOTUS passes on big affirmative action decision.”  That headline does not really sum up the opinion,* but I’m not surprised at the ruling—either its result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.  It’s a (very) safe bet that neither the result nor the delay in deciding the case was the result that the Fab Five had planned on when they agreed to hear the case and when the case was argued there.

But, well, stuff happens.  And, first things first.  And first—and foremost—for these folks, I believe, is the gutting of two key, interdependent sections, Sections 4 and 5**, of the Voting Rights Act (VRA), because that is the way to help Republicans in national elections.  And the stuff that happened in this instance was the oral argument at the Court back in March (I think) in Shelby County, Alabama v. Holder, the case that the 5-4 crowd has planned to use as its “vehicle”—a military tank—to gut that section of the VRA.

As I wrote in AB back then, comments that Kennedy made during the argument would, if adopted by him (he will be the author of the opinion in Shelby County; bet on it, quickly, tonight, before the opinion is released tomorrow!) would inescapably conflict, in two respects, with the ruling that Kennedy planned to write in Fisher.  And, yes, although absolutely everyone but me said Roberts would write the opinion in Fisher, Kennedy was the author of the Fisher opinion.  (Okay, one of his law clerks was, but without attribution, of course.)

During the argument in Shelby County, Kennedy made two things clear: First, that states are people, too (just like corporations!), and therefore are protected by the Fourteenth Amendment’s equal protection clause.  Funny, but who knew that the Fourteenth Amendment, whose express and sole historic purpose was to protect individuals (i.e., people) from denial of due process of law and the equal protection of the law by states.  Violation of constitutional rights by states, not by the federal government against states, which heretofore had no constitutional due process or equal protection rights.  Originalism and textualism only matter sometimes.

Second—and this is, I think, as I said in my post last spring, the real key to the conflict between what these five wanted to do in Fisher and what they want to, and almost certainly will, do in Shelby County—is that Kennedy and Scalia think that now that African Americans have real political power, they aren’t entitled to special protections.  Hey, Obama won, didn’t he?!  They can just use their political power to ensure that there are no improper barriers to voting and to having their vote not be improperly and deliberately diluted into meaninglessness in federal, state and local legislative elections.  Hey, Obama won, didn’t he?!

Which, as I said in my earlier post, raises the obvious question in Fisher of why the white UT applicants can’t just use their political power to have the legislature change the college-admissions statute.  Unless, of course, the parents of white upper-middle-class high school students (which is what plaintiff Abigail Fisher was) have less political power in Texas than African Americans do.

Kennedy suggested during the Shelby County argument that states and localities could honor the fact of their history of racial discrimination by, say, erecting a statue of a pre-civil-rights-era black citizen who was known to have been improperly denied access to the polls.  I suggested in my AB post that that could work as the solution in Fisher, too: a statue of Abigail Fisher, along with an explanatory metal placard, in the UT’s quad.

I said at the time that I thought it was poetic justice that Fisher and Shelby County were being decided in the same Court term.  The poetry, if not the justice, will become apparent, I’m pretty darn sure, when the opinion in Shelby County is released.  Probably tomorrow, probably along with the two same-sex-marriage opinions, probably to be drowned in news coverage by the tsunami of reportage and commentary on the latter cases.

Will I be humbly eating some of these words tomorrow?  We’ll see.  I mean, you never know.  Maybe Kennedy doesn’t read Angry Bear, after all.

UPDATE: SCOTUSblog’s Lyle Denniston just posted an indepth summary and analysis of Fisher, here.

*Originally, this sentence read, “That about sums it up, and I’m not surprised, either at the result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.”  I have not yet read the opinion (and probably won’t do so today), and was relying on the very early reports about it.  But I’ve amended that sentence in light of Lyle Denniston’s detailed article.  The bottom line, I think, is that the likely substance of the  impending 5-4 opinion in Shelby County saved affirmative action, for now, to the extent that Fisher did save affirmative action.

SECOND UPDATE: Here’s NYT Supreme Court correspondent Adam Liptak’s take on Fisher. He points out that the opinion is brief.  Just think of all that time these folks wasted in writing the original, pre-Shelby-County-argument, drafts of the opinion, the concurrences and dissents.  Time that the justices could have used instead to give a few more speeches at law schools and nonprofit organizations during their many, many, many fall, winter and spring breaks, some of them several weeks’ duration.  Their part-time job is exhausting, I realize, and they could have used the additional diversion (and speaking fees and junkets).  Oh, well.  Maybe next year, when there’s another affirmative action case on the Court’s docket.

THIRD UPDATE: **Originally, that sentence said that one key section, Section 5, of the VRA was at issue, and did not mention Section 4.  The Court issued its 5-4 opinion, written by Roberts, a few minutes ago, and SCOTUSblog says the opinion strikes down Section 4 but says the court makes no ruling on Section 5, and that Ginsburg says in her dissent that the striking down of Section 4 renders Section 5 dormant.  Section 5 is the section that requires certain states, counties and localities to first “pre-clearance” from a federal court or from the Justice Dept. before altering voting districts or other access-to-the-polls and weight-of-a-vote matters.  Section 4 is the section that creates the formula for determining which states, counties and localities are subject to the Section 5 pre-clearance requirement.

The effect of striking down Section 4 is to nullify Section 5 until Congress enacts a new formula to replace the now-void Section 4 one. Or until hell freezes over.  Whichever comes first.

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Anthony Kennedy and Antonin Scalia Say the Confederacy Won the Civil War and the Purpose of the Reconstruction Amendments Was to Reinforce Rather Than Diminish State Sovereignty. (Except on Affirmative Action, the Second Amendment, and Real Estate Property “Takings.”)

Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”
A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act

Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language.  It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 1, but not Section 5, also, as it happens, is at issue in the other culture-wars blockbuster Supreme Court case this term, Fisher v. The University of Texas, a.k.a., the big affirmative-action-in-state-university-admissions-policy case.

John Roberts will write the 5-4 opinions in both cases.  In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2.  It said (and the 5-4 Court majority will confirm in Fisher) still says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns.  Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns.  And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law.  Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.

These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term.  Christmas will come in May and June this year.  Or at least Santa Claus will.

Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list.  Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list.  That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.

Who knew?  Other than the Republican far-right, that is?

Not me, and probably not you.  You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states.  But, then again, you also probably learned that the Confederacy lost the Civil War.  Even those of you who went to upscale suburban schools or to fancy private ones.  Well, those of you who took that class pre-1980s, anyway.  But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.

Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014.  Only an unexpected vacancy on the Court will do that.

Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.  Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County.  Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue.  And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.

But these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them apply only to extraordinary procedures enacted by Congress. They do not apply to extraordinary procedures in the Supreme Court.  Such as the one in which the Reconstruction Amendments are rewritten, right along with Civil War and Reconstruction-era history.
I do have a suggestion for Texas, though, just as I have one for Alabama, since, when Texas, like Alabama, wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.
Again here, I suggest a statue–this one honoring all the white Texas high school seniors who narrowly missed the cut to gain admission to their state’s flagship university since the current state statute and its predecessor statute were enacted.

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