Monday, April 11, 2016

Justice Scalia's Legacy, His Counter-Clerks and Affirmative Action: Why the Court Should Change Course

by Eric Segall

There has been a lot written about Justice Antonin Scalia since his passing a few months ago. He was a larger-than-life figure (even by the standards of Supreme Court Justices), and no one can deny that he was a tireless public servant who devoted much of his career to government service. He was also, of course, one of the most polarizing Justices in our nation’s history.

A number of the Justice’s former law clerks have written remembrances in both law reviews and non-legal publications. Some of these are from “counter-clerks,” so-called because Scalia occasionally hired one law clerk (out of four) per year whose politics fell on the liberal side of the spectrum. The vast majority of these pieces remember Scalia in a favorable light while also painting a realistic picture of the man’s flaws and shortcomings. Professors Ian Samuel and Lawrence Lessig are just two examples of former clerks who went on to become successful liberal lawyers and academics. There appears to be little doubt Justice Scalia treated his former clerks well and encouraged them to argue positions Scalia generally opposed so he could hone and sharpen his opinions. Reading these essays is valuable and provides insight into how Justice Scalia ran his chambers.

There is one aspect of Justice Scalia’s legacy, however, that is perhaps uniquely troubling and relevant to the important affirmative action case (Fisherv. Texas) currently before the Court. Prior to Justice Scalia’s death, the clear consensus among Court watchers was that the Court would reverse the Fifth Circuit' judgment and rule against the university's use of race in admissions. Many people were worried that in doing so the Court would either dramatically cut back on the use of race in university admissions or even prohibit it all together. Normally, we would expect the Court to be deadlocked 4-4 on this issue now that Scalia is gone, but Justice Kagan is recused from the case, giving the conservatives who are already on record as opposed to the use of racial criteria by universities a 4-3 advantage. None of the four conservatives on the Court, including Justice Kennedy, has ever voted to uphold an affirmative action program.

One of Justice Scalia’s counter-clerks, Gil Seinfeld, now a University of Michigan Law Professor, wrote an honest and provocative piece about Scalia called “The Good, the Bad, and the Ugly: Reflections of a Counter-Clerk.” Professor Seinfeld (whom I have never met), clerked for Scalia during the 2002-2003 term when the landmark affirmative action cases Grutter v. Bollinger, and Gratz v. Bollinger were decided. The Court allowed the Michigan law school to use racial preferences (while applying strict scrutiny) but not the undergraduate college, mostly because the former utilized individualized review while the latter allocated automatic points for numerous criteria, including race.

Justice Scalia had previously staked out a strong anti-affirmative action position in several cases on the grounds that the Constitution requires color blindness. But, as Professor Seinfeld points out, by the time of Grutter and Gratz, there was an avalanche of authority arguing that neither the text of the Equal Protection Clause nor its original meaning requires color blindness in governmental programs designed to bring the races together rather than keep them apart. As Seinfeld apparently told Scalia, there is a “robust body of evidence indicating that, in the years following the Civil War and the ratification of the Reconstruction Amendments, Congress routinely enacted measures conferring benefits on blacks as a group.” Conversely, there is scant evidence to support the conclusion that the states and Congress are constitutionally disabled, at all times and in all places, from making relatively limited use of racial criteria to promote a more just society.

Seinfeld delivered this message to Justice Scalia not to convince Scalia to change his mind on affirmative action but to at least push him to respond to these devastating critiques. To Seinfeld’s chagrin, there is not a “syllable” of response to these originalist arguments in Scalia’s opinion in the combined cases. In fact, to the best of my knowledge, Justice Scalia never wrote one word about the original meaning of the Fourteenth Amendment in the context of affirmative action in any opinion he ever wrote.

Seinfeld suggested that perhaps Justice Scalia was so offended by racial preferences that his “instincts about what was right and what was wrong ... overwhelmed him and caused him to discard the principles that he applied honorably in many other contexts (including cases in which those principles commanded results he disfavored)…. And this happened, sometimes, when the stakes were very high.”

 I have argued that Justice Scalia often disregarded originalist principles but that isn’t germane here. The important point is that even a so-called originalist Justice who former “counter-clerks” have suggested was receptive to being challenged, had no interest in positing a response to the overwhelming evidence he was in fact presented with that the Constitution as an original matter did not bar limited racial preferences employed to help traditionally disadvantaged groups succeed in our historically discriminatory society.

There are a couple of academics, Ilya Somin and Michael Rappaport, both of whom I admire and respect, who have tried to respond to the originalist argument that the Court should not apply strict review to affirmative action programs. My view is that all these scholars have shown is that the originalist arguments in favor of racial preferences are not a slam dunk. That’s fine but that conclusion is light years away from Justice Scalia’s view that “five unelected lawyers,” borrowing his phrase from last term’s same-sex marriage decision, should dictate to the rest of the country’s elected leaders (most of them white) that they are not allowed to use limited racial criteria to make our country more equal and more fair for people of all races.

We will never know, unless there is something in Scalia’s papers that tells us and we are alive when the papers are finally released, why Justice Scalia never presented an originalist defense for the judicial invalidation of all affirmative action programs. But, given the importance of the issue, and how often the Court has returned to it, had there been any plausible response, one would think Justice Scalia would have provided it (Justice Thomas has also never written such a defense). Given that failure, unless the Justices simply want to impose their version of right and wrong on the American people, the Court should reverse (but likely won’t) course on its ill-conceived affirmative action jurisprudence and allow colleges and universities to make up for our racist past and strive for more racial diversity and equality in the future.


Hashim said...

Eric, in contrast to affirmative action, do you think the originalist argument against school segregation has been made? (I presume not, since state-mandated school segregation in 1868 was much more widespread than State (not federal) laws that discriminated based on race (not on race-neutral factors like former-slave status).)

Assuming not, do you likewise think "the Court should reverse course on its ill-conceived (anti-segregation) jurisprudence"?

If not, why the differential treatment? You seem to be assuming that, unlike school segregation, any non-originalist approach to affirmative action would uphold the latter practice. But that's simply not true -- under the non-originalist approach of brown v. Board, racial discrimination is no less odious when performed for purportedly "benign" reasons, especially when it falls on the backs of Asian students who bear no responsibility for past discrimination and many of whose ancestors also suffered from past discrimination. It's hardly surprising that affirmative action is routinely rejected when considered democratically, rather than imposed by elite educators whose own children need not worry about the costs since they'll be the beneficiary of legacy admissions and other forms of academic back-scratching.

(to be clear, none of this is to concede your charge that affirmative action survives under originalism. I've previously debated that with you, and don't want to retread it here. So i'm just taking your argument on its own terms.)

Hashim said...

PS. In the first paragraph, I meant to say "discriminated based on race in favor of racial minorities"

Joe said...

Scalia said something about why race conscious affirmative action is problematic in Adarand Constructors, Inc. v. Pena and it would be interesting if someone tried to determine what his reasoning there consistently would entail. The conclusionary statements found there aren't THAT helpful as legal argument but it would be interesting to see where it takes you.

I find some of his arguments unpleasant and unfortunate in part since he appears to me to not do the work, making his combative tone that much more disdainful to me. The pro-affirmative action arguments as to history are open to argument. There can be a means/ends/fit argument made, e.g., that refutes them. This is somewhat more nuanced than the idea that race consciousness alone is a problem.

It is not that he was a conservative that bothers many people but the shallowness of his reasoning mixed with his tone. The fact there were various reasons people liked and respected him too (humans tend to have bitter and sweet) is duly noted.

Shag from Brookline said...

When Fisher was first before the Court two major Asian-American groups submitted amici briefs in support of UTex. So let's not caste along with the late Justice Scalia and others.

And several prominent originalists have been acrobatic in efforts to support Brown via originalism as few directly challenge Brown openly - at least until recently. Is there a suggestion that with more originalists on the Court Brown might be reversed?

Joe said...

What level of scrutiny should originalism have to meet? Would mere rational basis review be enough?

Eric Segall said...

I am taking the Court's jurisprudence here on its own terms. The originalist argument in favor of racial preferences to bring the races together is much, much stronger than the originalist arguments against them. Sorry, but no reasonable person can conclude otherwise. I do agree that Brown is a hard case under originalism though there is no equivalence between Texas saying "no people of color here," and Texas saying "we want all races here." If the folks who ratified the 14th wanted to approve of separate but unequal schools they shouldn't have used the word "equal" in the text and we both know at the time of Brown there were not separate, equal schools. At the end of the day, there is a reasonable textual argument against segregation but not against voluntary racial preferences to add diversity and make up for an apartheid past.

Hashim said...

Eric, there are various strands to your response, but none of them work.

As a matter of *text*, the case against affirmative action is *stronger* than the case against segregation. It is at least theoretically possible to afford each "person" with "equal" facilities even if those facilities are segregated. But it is literally impossible to afford each "person" with "equal" chance of admission if the races get *unequal* treatment under admissions criteria. Simply put, the problem for your position isn't the word "equal," but the phrase "any person" -- the 14A guarantees equality for individual persons, not racial groups; if "the folks who ratified the 14A wanted to approve" of discrimination among persons to support alleged "equality" among groups, they shouldn't have used the phrase "any person" in the text.

As a matter of *historical applications*, the case against affirmative action is *also stronger* than the case against segregation. As you seem to concede, there were widespread examples of state-imposed racial segregation, which is a significant problem for an originalist case against segregation (though one that folks like McConnell have tried to overcome). But, as you do not and cannot dispute, there were nowhere near as many (if any) examples of *state* (rather than federal) laws that discriminated in favor of *racial minorities* (rather than on race-neutral grounds such as former slave status). Thus, whether or not there's *affirmative support* for an originalist case against affirmative action, there's nowhere near as much *contradictory evidence* for the originalist case against affirmative action than against segregation.

Accordingly, when you say that "no reasonable person can conclude otherwise," you seem to be relying on a version of originalism that ignores both the text and historical applications, in favor of ... I'm not sure what. I assume you're relying on some generic principles that you've abstracted out of the debates of the framers and ratifiers. But, suffice it to say that it's completely "reasonable" to reject that so-called originalism, which prioritizes alleged principles over actual evidence of original understanding as reflected by text and historical applications.

Hashim said...

Shag -- other Asian groups opposed the university in Fisher. Asian people don't all think the same. Though perhaps you intended to be ironic in conflating all asian people as a monolithic group, much like affirmative action does??

Shag from Brookline said...

Apparently for Hash, life is a zero sum game for some Asian-Americans, even with knowledge of the deprivations over several centuries in the Colonies and America of slavery, Jim Crow, etc, for African-Americans? Your hyperbolic:

"... especially when it falls on the backs of Asian students who bear no responsibility for past discrimination and many of whose ancestors also suffered from past discrimination."

demonstrates this. I reference supporting briefs by two prominent Asian-American groups Did other Asian-American groups file briefs anti-UTex? Your words that I quote have been used by many groups opposing affirmative action.

Joseph said...

Hashim has provided a solid answer to the "important" question of why Scalia "had no interest in positing a response to the overwhelming evidence he was in fact presented with that the Constitution as an original matter did not bar limited racial preferences employed to help traditionally disadvantaged groups succeed in our historically discriminatory society."

Simply put, why respond to an argument not made by the Court and that he didn't see merit in? It is no answer at all to say it is an "originalist" argument.

Joe said...
This comment has been removed by the author.
Joe said...

What is this solid answer?

An originalist argument against school segregation has been "made." Is that the same as "convincingly made"? Mere practice doesn't mean something was constitutional. Rank racial discrimination was blithely allowed for decades. Also, as Justice Jackson noted in an unpublished concurring opinion for Brown, education including of newly freed slaves was in a greatly different state in early than in the 1950s. Using original understandings, what was done in 1870 and 1950 wasn't quite the same.

Scalia was an originalist and thought Plessy wrong when it was decided. If he "didn't see merit" in a constitutional argument it would logically be "since originalism doesn't merit that argument." Others have claimed affirmative action is allowable as an original matter. Why wouldn't an originalist want to refute them on originalist terms? Scalia did that for other constitutional matters.

Also, I personally didn't see the professor as saying something akin to "seem to be assuming that, unlike school segregation, any non-originalist approach to affirmative action would uphold the latter practice." "Any" is a bit broad. But, the basic concern is that Scalia shows his originalist work for a range of things to show why a certain position is wrong. Why wouldn't it be warranted here?

[at some point, btw, it seems fruitful not to try to figure out what the other side is assuming if there is such a large gulf of understanding]

Asher Steinberg said...

I think this is another case where your stubborn refusal to let originalists define their own theory taints your assessment of whether originalists are accurately practicing their theory. To many originalists, it just doesn't matter much if the framers of the Fourteenth Amendment believed that laws of some sort didn't violate the Fourteenth Amendment, anymore than it matters to textualists whether members of Congress manifest a belief, after Congress enacts a statute, that something or another doesn't violate the statute. These originalists claim that original meaning and original expected applications are separable. At any rate, arguments from legislation assume that Congress always intends to legislate constitutionally, and lead to the reductio that laws like the Alien and Sedition Acts are constitutional under the original meaning of the First Amendment because one of the very early Congresses passed those laws.

Even if originalists believed that the views of framers about whether specific legislation violated a provision of the Constitution mattered, and even if those views could necessarily be gleaned from the fact that framers voted for that legislation, I don't see how things like the Freedmen's Bureau undermine Croson and Adarand. Recall that Croson said that affirmative action programs could remedy some specific instance of past discrimination; Justice Scalia even acknowledged, in his separate concurrence, that the government can racially discriminate in order to remedy its own past racial discrimination. The Freedmen's Bureau was an attempt to remedy the immediate after-effects of state-sanctioned slavery. That's a rather extreme case and I don't see how it's remotely inconsistent with present doctrine.

Hashim said...

Joe -- I don't disagree (and didn't disagree in any of the comments above) that it would have been better for Scalia to show his originalist work in the affirmative-action cases. If *the Govt parties* in Adarand or Grutter had defended on originalist grounds, I'm pretty confident that he would have -- and while it's pretty common not to expressly respond to arguments made only by amici/academics (so long as one is satisfied the arguments are without merit), I certainly would have urged him to expressly respond if I'd been clerking that Term, because he would have had plenty to say and would have preempted baseless attacks on his integrity. That said, the point of my comments above was to highlight that, both as a matter of text and as a matter of historical applications, the originalist case against segregation is even weaker than the originalist case against affirmative action, and yet Eric oddly suggested that Scalia and likeminded Justices should reverse course only on the latter, not the former.

Shag -- as I specifically mentioned in my comment, yes Asian-American groups supported the challenger in Fisher. See And whether or not life is "zero-sum", it's unquestionably the case that many individual Asians bear a heavy burden from affirmative action since they have to score much higher than they otherwise would, even though neither they nor their ancestors have any responsibility for the discrimination against blacks that you cite, and even though many of them and their ancestors likewise suffered from severe historical discrimination. This is most certainly not a situation where racial discrimination is a win-win for everyone -- some people get seriously harmed in the Govt's quest for "diversity", and it turns the EPC on its head that the racial group that arguably suffers the most is another historically disadvantaged minority.

Eric Segall said...

Justice Scalia has voted repeatedly in a way that if there were five votes, the decisions by officials in over forty states would be reversed. Briefs have pointed out repeatedly the anti-originalist nature of the color blind principle as applied to benign preferences and his own law clerk pointed that out to him. Hashim, your posts on this are outrageously off point. It is Justice Scalia who ranted and raved and ranted and raved about judges not reversing decisions by other political actors absent clear text or history and all he ever said about affirmative action was that it was a bad idea and violated a "principle" of color blindness that can't be defended based on text or history and that can only be embraced through a living constitution approach. Brown is basically irrelevant to this discussion. It was Scalia's burden not to show a close call or a tie but that either clear text or history took this decision away from state and federal officials. He never came close.

Shag from Brookline said...

Many people got seriously harmed in the governments support of slavery until the Reconstruction Amendments, and then the former slaves and their progeny got seriously harmed by the governmentys' failure to implement those amendments and actually support Jim Crow more than halfway into the 20th century, diminishing somewhat despite the steps taken by the former slave states to thwart Brown and the civil rights movement that followed, with racial resents continuing to this day. It seems Hash has problems with diversity (in scare quotes or not) efforts on the part of the government in confronting the continued opposition to the civil rights movement. Then Hash goes on:

" ... and it turns the EPC on its head that the racial group that arguably suffers the most is another historically disadvantaged minority."

Is the latter referring to Asian-Americans in America? Perhaps Hash could provide a comparative history of the disadvantages suffered by the former and latter group.

There has been a de facto caste system in America with Jim Crow and segregation with African-Americans. The 14th A's EPC clause is not self-impementing. I assume Hash opposes a caste system. But who am I to assume that?

Shag from Brookline said...

Regarding originalism, there remain a number of legal theories of originalism that remain active today. There are disagreements among originalists in a given theory, as in the New Originalism with solum, Barnett, and Balkin. Today was the home opener for the Red Sox down the street from me. I recall my first time at Fenway Park as a pre-teener in the early 1940s and a hawker yelling "You can't tell the players without a scorecard!" When the discussion involves originalism, a scorecard would remind us of the differing versions of originalism, its followers and whether the followeres have serious disagreements. Some New Originalist do not consider history as that significant. Scalia claimed to be an originalist, perhaps of the New Originalism, but not necessarily in syn with the New Originalists I mentioned. Larry Solum recently posted an update on originalism at his Legal Theory Blog, with extensive footnotes. Perhaps that can serve as the scorecard. Meantime, I'll be watching Ken Burns' doc. on Jackie Robinson. I don't need a scorecard for that.

Hashim said...

Eric -- my very first comment acknowledged that I wasn't debating your principal point about whether Scalia could sufficiently justify his vote on affirmative action, which is a point we've debated elsewhere and which I saw no need to retread here. So yes, my comments here were "off point" in the sense that I was instead testing what you said in your final paragraph the Court should do on affirmative action by asking about the logical implications of that position for what the Court should do on segregation. And on that, your attempted rejoinder in your first comment made no sense as a matter of text or historical applications, and you've quite conspicuously failed to provide any further rejoinder since. Which is of course fine, since it's your prerogative not to respond.

Shag -- no one's disputing that blacks were horribly mistreated by the Govt for centuries. The point I've made and that you've yet to refute is whether it makes any sense at all (let alone complies with the EPC) for the remedy for that mistreatment to come at the expense of a racial group that was not the perpetrator of that mistreatment, but rather the victim of mistreatment itself, albeit to a lesser extent. Moreover, if you really think "comparative disadvantages" are relevant, I look forward to your explanation of why Hispanics have been historically treated worse by the Govt than Asians. But cf., e.g., the Chinese Exclusion Acts, Japanese internment, Yick Wo, etc. Of course, such racial-group comparisons are odious, which is why the EPC guarantees "equal protection" to "any person," not to "every racial group."

Hashim said...

PS, Eric, one last point which is "on point": as far as I'm aware, notwithstanding your rhetoric about ranting and raving, Justice Scalia did *not* say that judges should never reverse decisions by political actors "absent clear text or history." He was not a Thayerian who required *clear* evidence of unconstitutionality. Where the text and history was *ambiguous*, he was willing to reason from first principles, precedent, etc. What he *did* say is that judges should not reverse decisions by political actors where *contradicted by clear text or history* -- i.e, where the Constitution's text clearly authorized the practice or where the practice was widespread and uncontroversial at the time of the relevant constitutional provision. And there simply is no text or history that *clearly supports* affirmative action, because the practice flunks the text of "equal" treatment of "persons," and because there were not widespread *state* laws around 1868 that discriminated in favor of *racial minorities as such.* As I think Asher pointed out, you're accusing Scalia of inconsistency by mischaracterizing the nature of his originalism.

Shag from Brookline said...

I don't know if Hash is an originalist or textualist of whatever kind, but the EPA clause of the 14th A does not employ "guarantees" in its text. I don't think I need a scorecard to understand Hash.

Part ! of the doc. on Jackie Robinson was most interesting. I plan to watch the concluding Part II tomorrow night.

Asher Steinberg said...

I should add a couple things. While I'm not defending affirmative-action doctrine here, either as good originalist constitutional law or good constitutional law by other lights (I tend to think it's neither), statutes which provided benefits to a class of persons defined by their recent emancipation (which, in many instances, are the ingredients of the supposed "avalanche" of evidence that Scalia got the affirmative-action cases wrong as an originalist matter) are *not* racial classifications, not even arguably so. The much stronger originalist evidence against the anti-classificationist or color-blind reading of the Fourteenth Amendment is the laws Congress passed on segregation, which are considerably less ambiguous on the question of what the framers of the Fourteenth Amendment thought about racial classifications, particularly in the educational context. Again, you have to be extremely cautious, when doing originalism as it's broadly understood today, about inferring a great deal about original public meaning from what the framers of some constitutional provision believed about the constitutionality of a particular statute, or assuming that those framers even believed themselves to be acting constitutionally at every moment. This is especially the case when looking at congressional enactments as a guide to the original meaning of the Fourteenth Amendment, given that everyone in Congress understood the Fourteenth Amendment at the time to only apply to the states.

That said, as an originalist matter, I think it's quite likely that the framers of the Fourteenth Amendment didn't think it applied to things like education or government contracts, and also quite likely that, whatever anti-discrimination work they intended the Fourteenth Amendment to do, they thought it was the P&I Clause, not the Equal Protection Clause, that did it. I also think that the segregation statutes, and other evidence, tend to suggest that the Fourteenth Amendment probably had a different original public meaning from the one Scalia and Thomas have attributed to it, not just that its framers made some mistakes about how the very abstract amendment they enacted applied to particular cases, or that its framers intended something different from Scalia and Thomas's interpretation. And I would agree that Scalia's opinions on this subject are unusually historically uncurious and fall back on question-begging about the text of the Equal Protection Clause (as do Hashim's comments above to some extent), which really doesn't provide anything like the clarity he claimed it did. I tend to think, though, that the real reason for his behavior here is that he needed to be able to tell a story (perhaps to himself as much as anyone else) about why originalism was consistent with Brown, that the best he could do was to read the Equal Protection Clause as a clear textual ban of racial classification, and that having arrived at that point, in what I believe was a good-faith case of confirmation bias, his commitments on affirmative action were set. Besides, any serious examination of history in this regard would have reopened the originalist pedigree of Brown.

Shag from Brookline said...

Perhaps Scalia-wag originalists might do head shaking if they deign to read Cass Sunstein's "Antonin Scalia, Living Constitutionalist" for which there is a post/link at the Legal Theory Blog with Larry Solum's "Recommended." It's on my desktop to read later today.

Joe said...

tl;dr AS -- ES has issues but basically kinda has a point regarding Scalia on this issue.

Greg said...

Quoting Shag, quoting Hash:

" ... and it turns the EPC on its head that the racial group that arguably suffers the most is another historically disadvantaged minority."

Is the latter referring to Asian-Americans in America? Perhaps Hash could provide a comparative history of the disadvantages suffered by the former and latter group.

I have no problem with Hash's statement taken by itself. Just because one minority had it worse than another doesn't mean that they both didn't have it bad. However, (to be snarky) perhaps Shag could provide a comparative history of the disadvantages suffered by Hispanics and Asians to explain why Hispanics should benefit from affirmative action while Asians are harmed by it. Not all who benefit from affirmative action are descendants of former slaves.

Quoting Eric:
At the end of the day, there is a reasonable textual argument against segregation but not against voluntary racial preferences to add diversity and make up for an apartheid past.

I agree with this statement to a point. There is reasonable textual argument for racial preferences to add diversity and make up for CURRENT apartheid. I would argue that current apartheid could include rectifying recent wrongs that may have been recently stopped but are in legitimate danger of recurring without the racial preferences.

It's been at least 40 years since the last schools desegregated (and over 60 years since Brown.) We have real racial problems in this country today that warrant racial preferences (particularly for African-Americans and Hispanic-Americans.) I am unconvinced that righting the wrongs of segregation continues to be a valid constitutional reason 2 generations out.

If righting past wrongs is a valid constitutional reason for racial preferences by itself, when does it stop? Assuming that there are no current racial wrongs being perpetrated, how long does righting past wrongs continue to be a valid reason for racial preferences? If 40 years is too short, how about 100 years? 150? 1000? In 1955, slavery had been illegal in the USA for longer than it had been legal (post-1776). In 2044 segregation will have been illegal for longer than it was legal post-slavery. In 2112 slavery will have been illegal in English-speaking North America longer than it was legal. In 2133 segregation will have been illegal for longer than it was legal (post-1776). When is it long enough to say that the wrongs of slavery and segregation have been righted (or are inherently unrightable), and whatever problems we have today are current wrongs?

We have real problems TODAY. Those problems alone justify racial preferences and other racially aware policies without resorting to history. I am unconvinced that righting historical wrongs that at least appear to have been righted before I was born continues to justify racial preferences.

Shag from Brookline said...

Yes, Greg is innocent, although perhaps a beneficiary of the concept of white supremacy which has attracted a significant base for Republican Trump. I have never had to walk in the shoes of African-Americans, but I can understand their real problems over my 85 years. Even Jackie Robinson did not level the playing field. Greg can stick his innocent head in the sand on history if he wishes. We all resort to history in some manner. Greg resorts to his personal history of innocence as to matters that occurred before his birth. That's the theme of many who opposed Brown, the civil rights movement, affirmative action, continuing today despite (or because of?) the election and reelection of President Obama.

Greg said...

What part of

We have real problems TODAY. Those problems alone justify racial preferences and other racially aware policies without resorting to history.

implies that I am personally innocent, or that I believe African-Americans don't have real problems? One of those problems could be that I'm a racist jerk, but that just proves my point. However, I do believe that I am innocent of other people being racist jerks before I was born. I especially believe that I am innocent of other people being slave owners over a century before I was born.

Let's list some of the cultural problems that TODAY need addressing:

African-Americans are disproportionately accused, sentenced, and convicted of crimes.
African-American and Hispanic-Americans are disenfranchised from voting due to voter id laws that have nothing to do with preventing fraud.
Inner-city communities have dramatically worse schools than those in suburban communities. This disproportionately affects minority children.
Arab-Americans are treated as terrorists based purely on their race.
Minorities are not selected for jobs or other opportunities for no other reason than their race. (shorthand: white privilege)
And, finally, there are some overt racists who will do the same things racists have been doing since the 1600s.

All of those are current problems that need to be dealt with regardless of the history that brought us here.

Modern attitudes and opportunity for Asian-Americans show that these are problems that can be solved, we just have to figure out how as a society to solve them.

The strongest argument for righting truly historical wrongs is that some current problems can be traced back to historical discrimination. That's true. It's also true that many other crimes may harm the victim's family for generations. Even so, we generally limit punishment to the life of the criminal and the criminal's estate. We don't throw the criminal's innocent children and grandchildren in prison or force those children to continue to pay damages to the children and grandchildren of the victim, even when the criminal's children and grandchildren indirectly benefit from the crime. There are limits to what the law can or should do to repay that which is lost.

We need to confront the problems we have today and come up with solutions for those problems, not focus on the different set of problems that we had decades ago.

Joseph said...


As Hashim wrote, the supposed originalist argument is weak and "it's completely 'reasonable' to reject that so-called originalism, which prioritizes alleged principles over actual evidence of original understanding as reflected by text and historical applications."

Hashim subsequently wrote that it would have been helpful for Scalia to expound upon such that in an opinion, if only to preempt attacks on his integrity. I see his point but I think such an excursion unnecessary.

Hashim does a good job of trying to put the shoe on the other foot. I'm only saying that Scalia likely didn't see merit in the Clerk's argument, let alone saw it as "devastating," and that's why he didn't respond to it. The idea that Scalia was betraying his principles forces us to rely on the kind of caricature of originalism that was slapped down in Caetano v. Massachusetts.

Shag from Brookline said...

I have read Cass Sunstein's article. I don't knowif other commenters have. It runs 8 pages, including the footnotes. It points out Scalia departures from originalism, speaking of caricature.

Greg: You quote only a portion of your closing paragraph from an earlier quote. Here's that paragraph in its entirety:

"We have real problems TODAY. Those problems alone justify racial preferences and other racially aware policies without resorting to history. I am unconvinced that righting historical wrongs that at least appear to have been righted before I was born continues to justify racial preferences."

Perhaps you might expound on that second sentence as to what appears, to you, to have been righted before you were born. I don't know when you were born. Perhaps the year would be helpful. (I was born in 1930 when Hoover was President.} This may assist in what you mean by "racial preferences" to weigh with the 14th A. Ignoring history can constitute a vacuum of knowledge and understanding, especially in America's racial history. Keep in mind that the current Republican Party's base significantly consists of former Democrats from the former slave states starting with Brown, the mid 1960s Civil Rights Acts, Richard Nixon's Southern Strategy in the 1968 campaign, which Reagan employed as did George H. W. Bush to a lesser extend, such that the Republican Party of today is not the Republican Party of Lincoln. And don't forget the Confederate Flag brouhahas that continue presently. This "history" may be irrelevant to you. But nature abhors a vacuum.

Joe said...

Joseph Simmons, I don't know why you think Scalia had no good reason to defend his stance on affirmative action in originalist terms. This isn't merely a matter of how a single clerk cited the argument -- the question arose repeatedly over his thirty years on the Supreme Court.

He used originalist to defend his position generally. It's what justices do -- they show their work even if allegedly the other side has has a flimsy case. Why exactly was it not a good idea here? Bad reasoning (allegedly) on major questions didn't usually lead him not to provide such arguments. But, as seen in Adarand, he here at best used open-ended conclusionary arguments etc. that yes makes people question his integrity but generally is makes one wonder. Why not?

I don't know what the reference to the stun gun case gets you. There, the Supreme Court briefly noted the rules set forth in D.C. v. Heller make the lower court opinion wrong. It is as Justice Alito noted, a somewhat pale effort and long term, I would want the Supreme Court to show their work a bit more on such a basic question. Heller itself (an opinion by Scalia) did the work though there. It allegedly made the originalist case on a major issue, rejecting what the majority deemed a bad counterargument.

Again, why shouldn't we expect Scalia to do this on affirmative action? As Asher S. notes, someone btw not a liberal from what I can tell, it does lead to some serious questions.

Greg said...

Shag, that's fair, I was born around 1980. The last schools desegregated in the mid-1970s. That certainly wasn't the end of the racial problems in this country that continue through today, but it was certainly the beginning of the end of the specific problem of explicit racial segregation in education.

Regardless of when I was born, I don't think I (or anyone else) can reasonably be held responsible for events that occurred before they were born. While I'm certain that racial attitudes were very different when you were growing up or even a young adult, it wouldn't be reasonable to hold you responsible for slavery that ended 40 years before you were born.

Our different ages may produce a different view on what constitutes "recent." To me, 40-50 years ago is history. My daughter views the 1990s the way I view the 1970s. While I would probably consider it completely reasonable to continue policies to rectify problems that were "solved" during the 1990s, she will probably consider that ridiculous. Heck, it's been 15 years since 9/11, she'll have a hard time understanding why we're continuing policies that respond to that since there hasn't been a terrorist attack of anything like that scale on U.S. soil since then.

As the voting age is 18, this has the effect that after 18 years, events start to become "history" and not "present" for the youngest members of the voting populous. I'll admit that seems a little short, but it's not insanely off, as it will be more like 40 years before a majority of the voting populous views an event as history.

It's also important to realize that while I don't think it makes sense to prolong solutions to problems that no longer exist, I think we're fools if we fail to learn from history. "Separate but equal is never equal," is a lesson my generation seems to have forgotten in a lot of non-race contexts, particularly in relation to gender." I can't get started on Trump, as I choose to self-invoke Godwin's Law.

This is part of why I am conflicted about how the Supreme Court struck down Section 4 of the Voting Rights Act in Shelby County. I can accept the court's argument that Congress was being unconstitutionally lazy. It isn't that the act isn't needed, it's that the maps need to be updated periodically to reflect current voting rights problems, and not those from half a century ago. At the same time, I'm not oblivious to the practical effects of the ruling. Should the court strike down unconstitutional parts of largely constitutional laws when the result is to render the whole law meaningless due to a deadlocked Congress? That's not an easy question to answer.

Joseph said...


"Joseph Simmons, I don't know why you think Scalia had no good reason to defend his stance on affirmative action in originalist terms."

Never said that; never addressed that separate topic. I only commented that Scalia didn't need to raise a supposedly originalist argument he saw no merit in.

"I don't know what the reference to the stun gun case gets you."

I was referring to the decision of the MA court as a 'caricature of originalism that was slapped down.' The reasoning of the MA court proceeded on an argument that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s]enactment.”

Maybe the MA court adopts cockamamie originalist theories all the time - but I doubt it. So, what referencing the case gets me is identifying that not every 'originalist' argument has merit or is genuinely originalist. In some circumstances, a bad argument needs to be addressed (Caetano) but in others it does not (the Clerk's argument). We can differ on whether a bad argument should be raised and debunked.