"One topic that the no one brought up at Monday’s Supreme Court oral argument on affirmative action was mismatch."

"Of the six conservative justices, not one was willing to bring up the research that suggests that students who receive an affirmative action leg up are actually made worse off by that supposed benefit. I think I know why: When Justice Scalia brought it up (very inartfully) at the 2015 oral argument in Fisher v. University of Texas, he got clobbered for it in the media. The last thing they wanted was a media frenzy like the one Scalia had to endure."

Writes Gail Heriot (Instapundit).

I'm posting this for discussion. I haven't studied the very long transcript and can't say for sure that any given thing was not discussed. And I wouldn't assume I know the reason why something wasn't said.

Here's my contemporaneous discussion of Scalia's clumsy use of the "mismatch" idea. Scalia speculated that classes at the higher ranked schools might be "too fast" for some students who would be better off at "slower-track schools."

I said, "By pointing at the mismatch argument crudely, Scalia gave supporters of affirmative action a lavish gift."

"When Justice Stevens wrote his opinion in Chevron, he meant to solve a knotty problem, but he did not mean to produce a major ruling, or even to make any change in the law."

"Justice Harry Blackmun’s private papers, which are now public, show that members of the Court found the case to be highly technical and difficult to decide.... Revealingly, Chevron had hardly any influence on the Supreme Court in its first years. Everything changed after Justice Scalia joined the Court in 1986 and became Chevron’s champion, urging that it inaugurated a new approach for courts to apply in reviewing the interpretations of administrative agencies. Justice Stevens repeatedly disagreed with him; he insisted that Chevron did not make any big change in the law, and that questions of law were for courts, not agencies. By the early 1990s, Scalia had prevailed: whenever an agency’s interpretation of a congressional enactment was at issue, Chevron was widely understood to give the administrative state a lot of room to maneuver. If you worked at a federal agency at the time, Chevron was your best friend." 

Writes Cass Sunstein in "Who Should Regulate? Cass R. Sunstein The question of whether federal agencies or the courts should have the right to interpret legislation may seem technical, but it significantly affects the power of the government" (NYRB)(reviewing "The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State" by Thomas W. Merrill).

For those who are uninitiated and yet not utterly bored — a small group, I'm thinking — the Chevron case provides — in Sunstein's words — "that when the language of statutes enacted by Congress is ambiguous, federal agencies are entitled to interpret it as they see fit, as long as their interpretations are not unreasonable."

Don't miss this casual phrase: "Justice Harry Blackmun’s private papers, which are now public..."  Was that treacherous leakage? The leakage was by Blackmun, of course, but I'm still asking if making all those notes and drafts public was an example of "the gravest, most unforgivable sin." Shouldn't we have access to these materials to understand why these decisions come out the way we do? Why should we be controlled by the careful wordings and omissions of the final version?

And I see that Chief Justice Roberts referred to Blackmun's papers in the oral argument about overruling Roe last December!

Joan Biskupic wrote about it last December, right after the oral argument, in "Why John Roberts cited the private papers of the justice who wrote Roe v. Wade" (CNN):

Amy Coney Barrett's opening statement to the Senate Judiciary Committee.

From the transcript (the first line in boldface is the key line, the most predictable and indispensable line but I've also boldfaced something else that I think is distinctive and important): 

Ranking Member Feinstein and members of the committee, I’m honored and humbled to appear before you today.... 

As I said, when I was nominated to serve as a justice, I’m used to being in a group of nine, my family, nothing is more important to me and I am very proud to have them behind me. My husband, Jesse and I have been married for 21 years.... Our oldest daughter, Emma, is a sophomore in college.... Next is Vivian.... Tess is 16.... John Peter joined us shortly after the devastating earthquake in Haiti and Jesse, who brought him home still describes the shock on JP’s face when he got off the plane in wintertime Chicago.... Liam is smart, strong, and kind, and to our delight, he still loves watching movies with mom and dad. Ten-year-old Juliette is already pursuing her goal of becoming an author... and our youngest, Benjamin, is at home with friends. Benjamin has Down Syndrome.... My own siblings are here... Carrie, Megan, Eileen, Amanda, Vivian, and Michael.... My parents, Mike and Linda Coney, are watching from their New Orleans home. My father was a lawyer and my mother was a teacher, which explains why I became a law professor....