But on this blog, we were talking about Richard D. Kahlenberg's contention that the 5th Circuit opinion "is likely to invite review—and reversal—of the lower court’s decision." Kahlenberg said:
Justice Kennedy’s opinion in the 2013 Fisher decision made two big substantive points and one stylistic one, all of which the Fifth Circuit’s majority opinion, written by Judge Patrick E. Higginbotham, oddly defies.I summed up what Kahlenberg said were the 3 things Kennedy said that Higginbotham defied:
... Higginbotham "dismissed Kennedy’s emphasis on race-neutral alternatives," "blithely asserted" that alternatives like socioeconomic affirmative action "wouldn’t work," "paid lip service to Kennedy’s requirement that courts give 'no deference' on the question of whether alternatives can produce 'sufficient' racial diversity," failed to require the University to give definition to its goal of "critical mass," and "took an unnecessary dig at Kennedy’s contention that the Fifth Circuit had misapplied the Grutter precedent."Okay, now back to Greenhouse's new essay on the subject of why the Supreme Court should leave Fisher II alone. Greenhouse says that the 2013 Fisher decision seems to have been "the result of some kind of compromise":
But what actually happened inside the court remained unknown outside until the publication this past fall of a new book about Justice Sonia Sotomayor by Joan Biskupic, a longtime legal journalist in Washington, D.C. The book, “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice,” discloses that the original vote was 5 to 3 to disallow the Texas plan.Wow! I don't remember reading that before.
Chief Justice John G. Roberts Jr. assigned the majority opinion to Justice Kennedy. The dissenters were Justices Ginsburg, Sotomayor and Stephen G. Breyer. As the senior justice in dissent, Justice Ginsburg gave Justice Sotomayor the task of writing a dissenting opinion that would speak for the three.Notice the name Linda Greenhouse omits: Elena Kagan. Kagan — according to Biskupic — voted along with Roberts, Scalia, Kennedy, Thomas, and Alito to find an equal protection violation in the UT affirmative action policy. I guess I'd better get Biskupic's book (which I must have bypassed because I don't need any more detail on Sotomayor's rise to power). [CORRECTION: No. Kagan recused herself. I should have remembered... or at least noticed that 5 + 3 ≠ 9. Now, once again, I'm free not to get Biskupic's book. ]
But let's stick with Greenhouse:
According to [Biskupic]’s account, Justice Sotomayor circulated a proposed dissent that was passionate and — my extrapolation — polarizing. With “Sotomayor as agitator, Breyer as broker, and Kennedy as compromiser,” Ms. Biskupic writes, there ensued a weeks- and eventually months-long effort to “lower the temperature” and produce an opinion that justices in the competing camps could sign. It succeeded, as Justice Kennedy gradually inched toward the minimalist opinion that Justice Sotomayor was willing to accept. (Justices Antonin Scalia and Clarence Thomas signed the Kennedy opinion as well, but also wrote separate opinions to make clear that they would relish the opportunity to overturn the court’s affirmative action precedents.)Greenhouse guesses that the polarizing Sotomayor opinion was a lot like what we saw from Sotomayor last year in her long fervent dissenting opinion in Schuette v. BAMN (the case about Michigan's new state constitutional provision banning affirmative action).
Obviously stung and undoubtedly annoyed, Chief Justice Roberts responded in his own opinion that it “does more harm than good to question the openness and candor of those on either side of the debate.”Why should Sotomayor's willingness to let loose with some passionate, high-handed rhetoric affect which cases the Court chooses — especially after that Fisher I compromise — if that's what it was — ultimately failed to stop her from saying all those things anyway? We already heard it all in Schuette, so that seems to clear the way for the Court to finish resolving the University of Texas controversy. The 5th Circuit doesn't seem to have responded to the nudge the Court gave it in Fisher I, so now it's the Supreme Court's turn again. Why not?
Against that background, does the court really want to invite a replay of Fisher v. University of Texas?
As the Fifth Circuit opinion makes clear, the case presents a Texas-specific issue. The 10 percent plan is required by Texas law, and no other state has anything like it.It was just as Texas-specific the first time up, but there is a larger issue, and it was perfectly apparent back in Fisher I: How seriously must courts take the strict scrutiny requirement that considering race must be necessary to the achievement of classroom diversity?
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30 comments:
What tangled webs they weave.
So Kagan voted for white people's claim to recieve equal rights to admissions to State Universities. Very interesting.
The best way to stop discrimination based on race is to stop discriminating based on race.
Besides, have 50 years of lowered expectations and soft bigotry made things better or worse?
There are the Strict Constructionists, and the Originalists, and the Textualists. Sotomayor is an Emotionalist - whatever feels right is the law of the day. She writes empathetic, nonsensical screeds that have nothing to do with law and everything to do with her vision of the good society. Interesting fluff, but nothing to do with rule of law.
We need to exercise affirmative action on the UT football, and basketball teams.
What is one to think when over half the team is black??
The only way racial preferences as a goal, rather than as a means, make sense, is if the burden of race is permanent and ineradicable. In other words, an African American kid from the poorest neighborhood in Detroit has the deck stacked against him in exactly the same way as one of the POTUS's daughters, so they deserve the same one size fits all thumb on the scale in college admissions or job applications... I think about a white kid growing up in a meth-ravaged village in backwoods West Virginia or Kentucky and compare him to the same daughters and wonder why they would get the benefit of a doubt while that kid doesn't...
I don't think that's correct as a factual matter and suspect that Kahlenberg is onto something in thinking that socioeconomic factors are a far greater barrier to reaching one's potential, than the accident of skin color. It also strikes me as a moral issue, imposing a permanent legal burden on one race because of assumptions based on their skin color.
Any plan to increase the number of American Blacks and Hispanics in higher education that does NOT take race into account will fail. The diversity people acknowledge this. Active racial discrimination in higher ed would then pass the strict scrutiny test Althouse proposes is necessary to uphold Fisher v. University of Texas
Since when do he diversity goals of a state's education system trump the 14th amendment?
It says the vote was 5-3 not 6-3. If that is true, then Kagan didn't join Roberts, Scalia, Kennedy, Thomas and Alito. Did Kagan recuse or vote "present" on the first vote? There is something wrong here.
How did Greenhouse get the rep of being a good reporter/writer?
She's as doctrinaire a Progressive as exists. She is like the left-wing of the Court --- you can assume, with near 100% accuracy, what she will say on any issue.
Looking at the opinion, Kagan had recused herself from the case.
"Looking at the opinion, Kagan had recused herself from the case."
Oh! Thanks. I'd forgotten. That's why it's 5-3... which doesn't add up to 9.
damikesc said...
How did Greenhouse get the rep of being a good reporter/writer?
Asked.
She's as doctrinaire a Progressive as exists.
Answered.
There's obviously a big audience for what Greenhouse does in the NYT. Her essays always spike to the top of the most-read list.
Greenhouse is a hack, a peddler of politically slanted disinformation. She's another Democratic operative with a byline. I won't click any link knowing it goes to her writing anymore.
re: doctrinaire Progressive, striving mightily perhaps to overcome the undesirable implication of the name.....greenhouse.
So much effort to find a way to day it is constitutional for state schools to discriminate against whites and Asians.
Sotomayer is a disgrace. Never mind not competent. They might as well have nominated Grrenhouse.
Sonia Sotomayor's self-characterization as a "wise latina" looks more and more unwise all the time.
If Kahlenberg is right about Higginbotham's defiance, then isn't that all by itself a reason for the Court to take up the case again? Perhaps someone in the Fifth Circuit needs to be reminded why it's called the Supreme Court?
Greenhouse is just engaged in battlespace preparation. If and when the Court grants cert in the new UT affirmative action case, she'll write about how it's a wholly illegitimate politicizing of the Court, blah, blah, blah.
You get automatic admission to UT if you graduate in the top 10% of your class. I think it has since modified to 8%. It’s a questionable tool, but less so than other affirmative action metrics. It allowed more Hispanics to attend, but had little effect on black admissions. It did reduce admissions from predominately white top rated schools. However, if you can’t maintain your GPA, you lose financial aid. So completing study and graduating remains somewhat merit based. UT is also stinking it up in athletics, so I assume they are trying to maintain some level of academic standards. I can only guess how TCU became top dog in the athletic heap.
College admission is sausage making that probably never looks good in the light of day. It’s easier to get to Harvard from Texas than from a Massachusetts high school. For a top Hispanic student from the Rio Grande Valley, admission to an Ivy League school is a real possibility. Staying there and finishing is a whole other problem.
What would be the effect of the Supreme Court stating that the color of one's skin was not subject to government notice, despite all the blather about diversity?
Am I understanding this correctly, that the dissenting opinion would have been much nastier, except that the majority opinion moved over to pacify them?
New idea to me. If it's true, I don't like it. The opinions only need to satisfy those who sign them.
madAsHell said...
We need to exercise affirmative action on the UT football, and basketball teams.
What is one to think when over half the team is black??
That you want to win by getting the best athletes you can?
All of this complaining about poor college admissions rates for blacks and Hispanics is ignoring the more fundamental problem. The problem is the poor K-12 education so many blacks and Hispanics receive. This has multiple components, but two of the biggest are:
1. Poorly ran school systems. This isn't a matter of funding because those failing schools are often the most lavishly funded (see Washington DC as but one example). To raise this issue is to condemn both the administration of the schools and the poor teacher quality.
2. Cultural issues within those communities that equate striving to accomplish something academically with "acting white".
Improve the quality of K-12 education in the minority communities and encouraging striving for academic excellence and college admission becomes a non-issue.
There is no diversity on SCOTUS, which has 6 sitting Roman Catholics and 3 Jews.
There is no diversity in our national parks, forests or monuments, where fewer than 1% of attendees are Blacks, Hispanics or Native Americans.
There is no diversity at the UT Law School, where over 95% of the students are liberal humanities majors with no expertise in STEM or economics.
Against that background, does the court really want to invite a replay of Fisher v. University of Texas?
Is Greenhouse's argument here really that the Chief and those in the majority the first time should let themselves be preemtively bullied out of taking up the case again due to fear over what kind of tirade Soto. would write in a (likely) dissenting opinion? If that worked, what signal would it send more generally, and how would that affect future cases/opinions/cert decitions? Roberts et al. have to know enough game theory (intuitively at least) to understand what a ridiculous argument Greenhouse is making here--do NYTimes readers?
"Greenhouse has written before to express her view that the Supreme Court will not (should not?) take the case again"
It is by now obvious that what Greenhouse writes is always her opinion and desire, informed by no belief at all that she must conform to actual reality, as opposed to her preferred reality.
Ann Althouse said...
There's obviously a big audience for what Greenhouse does in the NYT. Her essays always spike to the top of the most-read list.
Of course she does. She pads the cocoon and fluffs the bubble that NYT readers live in. Being known for telling people exactly what they want to hear is always popular, esp. with the deliberately self deluding.
Greenhouse's POV is the NYT POV, neither of which I agree with.
Greenhouse's unbiased legal opinion somehow always matches her liberal/progressive opinion.
She is a liberal hack that knows a little about constitutional law (like the President). This gives her personal opinions some window dressing of credibility, which makes her the darling of the NYT readers.
It's no different than a Krugman view that defies the laws of supply and demand. It is liberal trope covered in a veil of legitimacy because he is Nobel winning economist.
It takes 4 votes for a cert petition to be granted. Scalia, Thomas, and Alito seem quite likely while Roberts and Kennedy could easily supply the fourth (and fifth) vote. It's hard to see any of them being intimidating from taking a case because Sonia might throw a hissy fit. In a string of decisions, the current SCOTUS has been hacking away at racial preferences that may have made sense 50 years ago, but look quite different today. Kennedy's opinion in Fisher I suggests that this is the next area where the SCOTUS will effectively jettison racial preferences that have been given an easy pass up to now despite being nominally subject to strict scrutiny.
The Greenhouse commentary on this case is quite like her commentary on King v. Burwell, the statutory interpretation case about Obamacare to be argued in March. She is hardly the best guide to the concerns animating the current SCOTUS majority on which cases to take, and how to decide them once they do.
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