Althouse: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

June 24, 2013

"If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

Justice Ginsburg, quoting Professor Thomas Reed Powell, in today's opinion in Fisher v. University of Texas, mocking the notion of race-blind alternatives to affirmative action.

AND: What really distinguishes the legal mind is knowing whether you want 2 things to be the same or different and the skill and the nerve to say that they are. That is, it's not about what you think you are capable of thinking. It's about what you are willing and able to say. Powell is willing to deploy the dead metaphor inextricable attachment and to soothe you into thinking that you're better than other people — ugh, lawyers! — if you don't ask whether those 2 things really are inextricably attached.

The 2 things in today's context are: 1. taking race into account in admissions and 2. other admissions policies that would produce a racially diverse student body.

17 comments:

Methadras said...: Kill affirmative action completely. It's about time that people learn how to stand on their own two feet instead of having government intrude into the business of other peoples businesses?; 6/24/13, 11:00 AM
AllenS said...: "If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

WTF is she talking about?; 6/24/13, 11:02 AM
Dear corrupt left, go F yourselves said...: "I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal."
...

...

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

-- Martin Luther King Jr.; 6/24/13, 11:02 AM
AllenS said...: Oh, now I get it. It's the long version of "it depends on what the definition of is, is."; 6/24/13, 11:04 AM
YoungHegelian said...: "inextricably attached"

But there's the rub, isn't it, in that adverb inextricably.

For those who see race as a foundational category of American history, then it's inextricably attached. But for the rest of us, maybe not so inextricable.

Another example to help explain my point: if one's a Marxist, one can't explain the nature of labor without binding it to class consciousness. But if one's (e.g.) a Chicago School economist, labor can be discussed as just an aspect of a market with no reference to class consciousness at all.

It's all about whose dialectical ox is getting gored, is all.; 6/24/13, 11:06 AM
madAsHell said...: I can think about sex without thinking about the woman, but I can't distinguish the 50 shades of gray painted here.; 6/24/13, 11:08 AM
Sorun said...: Ginsberg's views on the need for affirmative action are understandable since she has such a poor history herself of voluntarily hiring blacks.; 6/24/13, 11:12 AM
Unknown said...: April Apple beat me to it.; 6/24/13, 11:13 AM
cubanbob said...: The notion that somehow, magically minorities receive a better education when seated next to whites presumes that sitting next to a minority will worsen the educational outcome. While I don't argue that private universities can do what they want with their money (provided there isn't a large public funding component) government owned universities should be run on a meritocracy basis.; 6/24/13, 11:31 AM
n.n said...: Ginsburg neither recognizes nor appreciates individual dignity.; 6/24/13, 11:32 AM
traditionalguy said...: She does not believe there can be double minded skills. She probably also thinks drivers cannot talk on a blue-tooth cell phone and drive at the same time. It cannot be done!; 6/24/13, 11:47 AM
Michelle Dulak Thomson said...: Ginsburg argues (citing a number of her own opinions, all dissents) that compensatory racial preferences are justifiable. That is, she would overrule Bakke if she could, and agrees with me (and a hell of a lot of other people) that the "diversity" argument for racial preferences in higher education is essentially fraudulent.; 6/24/13, 11:52 AM
JRPtwo said...: Come on, give a Supreme Court justice a little more credit for clear thinking and writing. Ginsburg is responding to the contention that the Texas Top Ten Percent Law is racially neutral, “only an ostrich could regard the supposedly neutral alternatives as race unconscious.” Before Texas passed it, bill analysis recognized that due to segregated living patterns the bill would “ensure a large, well qualified pool of minority students was admitted to Texas universities.”; 6/24/13, 11:58 AM
Tibore said...: "I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious...

... “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” That is, only legalistic people think there's a way out of race consciousness."

Chief Justice Ginsburg, translated: "We can't actually get rid of even a tiny smidgen of a bad thing, so let's just fully embrace the bad thing, put it on full display, and practice it whole hog, all the way."

Ick. To say that this bothers me is an understatement.; 6/24/13, 12:22 PM
edutcher said...: This woman is incapable of "interpreting" the constitution because the MEN who wrote it would have laughed her out of Independence Hall for saying something so stupid.; 6/24/13, 12:30 PM
Leland said...: Agree with April Apple and Wyoming Sis, but I guess those of us, who grew up with an understanding that people agreed with the Reverend MLK Jr. and particularly his I Have a Dream Speech, thought agreement meant believing in these principles. Apparently, we are still supposed to base decisions on the color of a person's skin and not at all on the content of their character. I won't do it, but I see I'm in the minority along with people like Justice Thomas.; 6/24/13, 12:59 PM
Revenant said...: Affirmative action is racist not merely because it demands race-based discrimination, but because of WHY it demands race-base discrimination.

It implicitly argues that races are inherently different. If you are black you are by definition less capable of performing well on a test than a white person would be -- any black person, any white person. Barack Obama's kids are less capable of taking a standardized test than Honey Boo Boo is, just because for former are "black" and the latter is "white".

Or so affirmative action tells us.; 6/24/13, 4:32 PM