The Justices and the Absence of a Binding Ethics Code: More Reasons Why the Court is not a Court

By Eric Segall

For over thirty years, I have had numerous personal and professional relationships with state court and lower federal court judges. The vast majority of them take their ethical responsibilities seriously, especially when it comes to accepting gifts from people with interests before them and deciding whom they may socialize with if they fear people may be seeking to influence them. Various state and federal ethics codes bind these judges, but in my experience, most judges simply think it is part of the judicial role to avoid, what virtually all judicial ethics codes call the "appearance of impropriety." That standard is codified in the Official Code of Conduct rules applying to "United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges." The federal judges not covered by this Code are, of course, the Justices of the United States Supreme Court.

Canon Two of the Official Code of Conduct says the following:

Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge....

Again, it has been my experience that most judges abide by these rules not just because they have to but because a vital part of a judge's responsibilities is to avoid any public perception that they are beholden to special or private interests. Now let's talk about the Supreme Court of the United States.

The Pageantry of Casual Racism

by Neil H. Buchanan

This past weekend was the big rivalry week in American college football.  As in the past, I find myself unable to break the emotional hold that this corrupt and ugly game has on me, so I watched and watched and watched.  Whereas in the recent past I would be tempted to write yet another column defending amateurism and pointing out that scholarship athletes have never been "unpaid," however, the situation has now gotten so completely out of hand that there is no point.  This is bad all the way down.

So rather than discuss the fact that showering money on college players -- so openly that one "color commentator" spent several minutes during a game on Friday giving a star player unsolicited advice to  hold out for $7 million in "name, image, and likeness rights" from his university, to stop him from going to the NFL -- has not in any way fixed the deeply corrupt system (big surprise), I will focus on a different kind of ugliness.

The Challenge of Writing a Constitutional Law Exam in a History-Centric Regime

 by Michael C. Dorf

In a Verdict column last month, I decried the recent turn to history in SCOTUS cases involving unenumerated rights, firearms, and the Establishment Clause. I contended that, in these particular subject matter areas and as a general matter: history standing alone is too under-determinate to adjudicate contemporary constitutional controversies; therefore it will be used (as it was in recent cases) chiefly as a mask for decisions reached on ideological grounds; and unless the Justices are prepared to overrule just about all of their precedents, they will need some means of deciding when a case presents a novel question to be decided under the history-only rubric versus when a case presents a sufficiently interstitial question to call for the application of older precedents that are preserved per stare decisis.

The turn to history presents a further problem that I raise here only partly tongue-in-cheek. It poses a serious challenge to those of us who teach constitutional law: how to write a good exam question?

Is a Patently False Statement Necessarily a "Lie"? (A Thanksgiving Classic From Sherry Colb)

[N.B. The following blog post first appeared on the day before Thanksgiving, 2014. We'll be back with new content on Monday.]

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Warger v. Shauers.  Warger involves Federal Rule of Evidence 606(b), which prohibits, among other things, the introduction of juror testimony in an effort to undermine the validity of a verdict.  The petitioner, Gregory P. Warger, wants to introduce a juror's testimony about a fellow juror's comment during deliberations, not as itself an error affecting the verdict but instead as evidence that the latter juror materially lied during voire dire and should never have been seated on the jury.  In my column, I consider whether the petitioner's distinction -- between prohibited juror testimony about a fellow juror's improper statements during deliberations and permissible juror testimony about a fellow juror's disclosure during deliberations of lies during voire dire -- is tenable.

In this post, I want to explore the meaning of a deliberate "lie."  In Warger, the petitioner claims that one of the jurors lied during voire dire about her impartiality and ability to award damages if the plaintiff satisfied his burden of proof.  We know that she lied, argues the petitioner, because the juror revealed during deliberations that if her daughter had been sued for the accident for which she -- the daughter -- was responsible, the lawsuit would have destroyed the daughter's life.  The petitioner's inference is that this statement -- about the juror's feelings about the lawsuit -- demonstrated the falsity of the juror's claim of impartiality and willingness to award damages if appropriate.  Had the juror said during voire dire, "I am biased against plaintiffs because a plaintiff could have ruined my daughter's life," then the juror would have been successfully challenged for cause and accordingly precluded from serving on the jury.

Though there is room for quibbling, I am prepared to concede to the petitioner that the juror's statements about her daughter are logically inconsistent with her prior claim to be unbiased.  Does this mean, however, that the juror was necessarily lying?  Was her claim of objectivity comparable to a claim she was childless, even though she in fact has a daughter, as revealed by her comment during deliberations?  I think not.

The Impossibility of Principled Originalism

 By Eric Segall

Last week on this blog, Mike talked about how the leadership of the Federalist Society asked its co-founder Professor Steven Calabresi to not identify himself in that way when advocating certain legal positions concerning the so-called independent state legislature doctrine the Court is going to address later this term. In his final paragraph, Mike wrote the following:

The Fed Soc website proclaims the 'duty of the judiciary to say what the law is, not what it should be.' Evidently, it also includes an implicit exception: unless what the law is doesn't align with the ideological druthers or institutional interests of the Republican Party; then it's the duty of the judiciary to pretend the law is what we wish it were.

Of course, we all know that the Federalist Society leadership is not interested in real judicial engagement with text and history but with political results they favor. But what about the judiciary and the legal academy? Is it possible to be a principled originalist? The answer, given today's strong culture of judicial supremacy, is simply no.

Two Oddities in the Respect for Marriage Act

by Michael C. Dorf

Last week, the Respect for Marriage Act (RMA) cleared the very substantial hurdle of a Senate cloture vote. Its passage now seems assured. Even if some of the Republican Senators who voted for cloture don't vote for the bill itself, it will surely garner majority support in the chamber. It will then go back to the House to vote on the amended version, and then to President Biden for signing.

Is that a big deal? As I explain in my latest Verdict column, in the short run the RMA doesn't do anything, because the SCOTUS ruling in Obergefell v. Hodges protects same-sex marriage as a constitutional right. But as I also explain in the column, there is at least some reason to fear that the SCOTUS conservative super-majority might overrule Obergefell. I don't think that's likely, mainly on legal realist grounds; however, I don't find the reassurances that Justice Alito offered in Dobbs v. Jackson Women's Health very reassuring.

My Verdict column describes what the RMA does: (1) repeals the Defense of Marriage Act; (2) forbids states from refusing to recognize interracial and same-sex marriages from other states; (3) provides that federal law will treat as married people who are married under state law; and (4) in the version that's pending in the Senate though not the original House version, exempts religious non-profits from any obligation to provide goods or services to celebrate weddings they disapprove on religious grounds.

The key language in the RMA forbids state actors from denying recognition "to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or nation origin of those individuals." The federal definition provision (in the version pending in the Senate) also contains the "2 individuals" proviso (twice). In the balance of this essay, I want to discuss two oddities of that language: (A) the use of the word "sex" to somewhat obliquely invoke same-sex marriage; and (B) its rejection of plural marriage via the use of "2."

Joan Didion's Blank Notebooks, Eleanor Roosevelt's Andirons, and the Appeal of Tangible Artifacts

by Michael C. Dorf

Until a couple of weeks ago, I hadn't much ventured into the literature of grief, mostly because I wasn't sure I could handle it yet. But I knew what would be first on my list: Joan Didion's The Year of Magical Thinking. Didion was a wonderful writer whose ironic yet realistic sensibility I deeply appreciate, so I took the plunge. The book--which recounts the year after her husband (author John Gregory Dunne) died of a sudden heart attack--spoke to me.

The Year of Magical Thinking takes its title from a number of episodes, most centrally Didion's inability to give away her late husband's shoes because he would need his shoes if he were to come back to life. I know exactly how she felt. It's not that you believe your dead husband or wife will return. It's not even  denial as a stage of grief. It's more a kind of disorientation. You see the familiar objects and they bring to mind their departed owner, which reminds you they're gone, which surprises you, because you didn't think you had forgotten. Indeed, much of The Year of Magical Thinking involves Didion finding herself in familiar places and remembering long-ago incidents, noting how sometimes, but not often, these flights of fancy take her away for a few minutes from consciously thinking about her husband's absence or, in the memoir's other tragic plot line, her daughter's grave illness.

Yet if Didion's attachment to her late husband's shoes makes perfect sense, what are we to make of the value perfect strangers place on Didion's own belongings, including ephemera seemingly wholly lacking in sentimental value? This week her estate held an auction. As Danielle Cohen observes at The Cut:

Two sets of blank (blank!) notebooks went for $11,000 each. A stained pair of leather trash baskets were auctioned off for $5,500. One lucky (?) soul coughed up $7,000 for the collection of beach trash that once sat on Didion’s mantel.

Admittedly, the proceeds go to charity, and I suppose that the purchasers of these items could thus rationalize that they were doing good, but it remains a mystery why they wanted these items at all. Instead of paying $11,000 for a blank notebook once owned by Joan Didion, why not donate $10,985 to charity and buy a copy of The Year of Magical Thinking for $15. If you already have a copy (and what Didion fan willing to spend $11,000 for random memorabilia doesn't own all her books?), you can give this new copy as a gift.

Blaming the Victims in America's Crisis of Democracy

by Neil H. Buchanan

There might not be much more to say about the 2022 midterm elections, although I do believe that the most important fact about our current situation -- that Democrats lost the House because of gerrymandering, full stop -- has been almost completely missed by the usual suspects.

In any case, now that everyone is turning their attention to 2024, it is somewhat surprising that there was an almost ho-hum attitude in the press about Donald Trump's official confirmation of the obvious: that he is running for president again.  I knew that he had been hyping an official announcement on Tuesday, but I was not near a screen during his speech, and when I opened the apps for the The New York Times and The Washington Post at about 11am on Wednesday morning, reports on Trump's event were something like ten or twelve stories down the page.

That does not mean that people will continue to ignore Trump, and it definitely does not mean that someone else will be the Republican nominee in 2024.  Even so, this was indeed a surprise -- and a pleasant one at that, especially in light of my Verdict and Dorf on Law columns yesterday arguing that any not-Trump Republican nominee is less likely to end US democracy than Trump is.  (Not unlikely, just less likely.)

With 2022 out of the way, then, attention should turn to whether the rule of law in the United States will survive past 2024.  Things are off to a bad start, however, given that the editorial board of The Times (as I noted yesterday) has already decided to pretend that dangerous Republican presidential aspirants are non-dangerous and "have demonstrated a commitment to the rule of law and an ability to govern."  There is evidently no bottom to the well of studied obliviousness from which the respectable press draws.

In any event, I want to make this column relatively short, focusing on two particularly galling arguments from the non-Trump right that blame Democrats for "putting democracy on the ballot."

The Least Likely Candidate to Win (Trump) Is the Most Likely to End Democracy, But Any Republican Could Do It

by Neil H. Buchanan 

"When the facts change, I change my mind - what do you do, sir?"  Even though John Maynard Keynes might not have uttered that sentence, it is a memorable and pithy way to say that we should be open to updating our beliefs if new evidence or arguments arise.  Fair enough.  And having quoted myself (accurately) dozens of times arguing that the United States is a "dead democracy walking," last week's midterm results offer an important opportunity to look anew at this country's political mess.

After reassessing the situation, I sadly conclude that we are still almost certainly f*cked, but whereas I previously said that I merely hoped that a way out might emerge, I am now revising my assessment to say that there might finally be realistic, non-wishful reasons to believe that the country and the world could be spared an American descent into fascism.  Again, the worst outcome still seems very likely, but certainly less so than it did eight days ago.

Let us count the ways that things have changed and not changed.

Justice Thomas Goes Silent Again--At Least For One Election Denier's Case

by Michael C. Dorf

Scorning the tendency of some Republican appointees to succumb to what was once called the "Greenhouse effect,"--whereby they proved more moderate than expected or even liberal--Justice Clarence Thomas famously told his law clerks, "I ain't evolving." The quip captured two related sentiments: first, that Thomas was a committed conservative rather than a wobbly one or a closet liberal; and second, that he was unconcerned about what elite coastal liberals thought. The Greenhouse effect was after all, based on the hypothesis that the likes of Sandra Day O'Connor and Anthony Kennedy cared what Linda Greenhouse wrote about them in The New York Times.

Both sentiments expressed by Justice Thomas were well justified and have proven true over time. Today's essay will focus on the second point, harnessing evidence from an order the Court issued yesterday in Ward v. Thompson.

In that order, the Court, without opinion, denied an application for a stay and an injunction presented by Kelli Ward, the chair of the Arizona Republican Party, one-time fake elector for Donald Trump, and the object of a subpoena from the January 6 Committee for phone records. (The subpoena went to her mobile phone carrier, but she sought to block compliance.) For more background on the substance of the dispute, I recommend Amy Howe's explainer on SCOTUSblog.

Federalist Society Tries to Cancel its Co-Founder

by Michael C. Dorf

In a few weeks, the Supreme Court will hear argument in Moore v. Harper, which presents the Justices with their first opportunity to give plenary consideration to the independent state legislature (ISL) theory, according to which state legislatures can make and change laws governing congressional and presidential elections, independent of their state constitutions, state courts, and in the most aggressive version of ISL, of the governor. ISL is ahistorical and a potentially grave threat to democracy. Even as many Republicans grow weary of Donald Trump--not, mind you, because he is a lying, cheating, racist, sexist, evil man, but because he is bad for their political brand--Trump and Trumpism remain a very real threat to the continued existence of American democracy. His expected announcement tomorrow night of a third presidential run underscores the threat. Should SCOTUS endorse ISL in Moore v. Harper, Trump will have a path back to power that does not depend on his winning the Electoral College as it has traditionally acted, much less winning the national popular vote.

But this is not an essay about ISL, Moore v. Harper, or Trump, at least not directly. Rather, today I want to talk a little bit about what happened after a scholar with impeccable conservative legal credentials joined a brief disputing ISL and otherwise disagreeing with the orthodoxy on issues that the Federalist Society definitely does not insist upon.

That the Democrats Came Close Does Not Change Anything

by Neil H. Buchanan

So, you say there were some elections in the United States earlier this week?  How did that go?  As I wrote here on Election Day, we knew that tens of millions of people would vote for Republicans who are in the process of trying to turn America into a one-party state, while tens of millions of others (roughly half of all registered voters, it turned out) would not show up to vote against the party of insurrection.  That was an easy prediction, and it was accurate.

Most observers also made what they thought was an easy prediction, which was that Democrats would be wiped out in this election cycle.  They were wrong.  The post-election group-navel-gazing has almost entirely involved marveling at how relatively well the Democrats did, with grand pronouncements from the usual pompous asses that "the fever is breaking" amid discussion that maybe American democracy is not in as much danger as we thought.

Sadly, that is nonsense.  I agree with Professor Dorf's analysis on Wednesday that there is nothing meaningful or helpful about the Democrats covering the spread.  Or, to change the gaming metaphor, there is no "second-place money" in a winner-take-all pot.

I will have more to say about that below, but I will take a moment first to advertise my new two-part Verdict column, "Political Violence in the United States."  In today's second part of that column, I note with some gratitude that the worst-case scenarios of widespread violence in this year's elections has not played out.  There is still time for that to go sideways, but violence avoided is violence avoided, and that is good as long as it lasts.

Here, I want to explain a bit more why I agree with Professor Dorf's conclusion that this was still a terrible week for the country (and the world), and I will add some thoughts about how it all happened.

SCOTUS Ponders Indian Tribes, Foreign Nations, Race-Based Classifications, and Vegans

 by Michael C. Dorf

Yesterday the Supreme Court heard oral argument in Haaland v. Brackeen and various consolidated cases. They collectively present constitutional challenges to the Indian Child Welfare Act (ICWA), a federal statute that in various respects supersedes state family law regarding foster care placements and adoptions of children who are members of federally recognized Indian tribes. Three main constitutional issues are presented: whether (1) ICWA falls within the scope of Congress's so-called plenary power over relations with and regarding Indian tribes; (2) whether the obligations that ICWA places on state and local child welfare agencies constitute unconstitutional commandeering of the state; and (3) whether ICWA obligates state courts (and/or other state actors) to use a suspect racial classification, thus triggering (and failing) strict scrutiny. In addition, there are threshold questions of standing, especially with respect to the state of Texas, which is the petitioner in one of the consolidated cases.

In today's essay, I'll focus chiefly on the third question, and in particular on an issue that seemed especially important to Justices Kavanaugh and Barrett during the oral argument: what to make of the "third preference" of a key provision of ICWA? A declaratory provision of ICWA states that in addition to protecting the integrity of Indian tribes, ICWA's substantive requirements aim "to protect the best interests of Indian children." Nonetheless, no one disputes that where ICWA applies, it partially displaces the "best interests of the child" tests that state family courts routinely apply in cases that do not implicate ICWA. The key provision states the following adoption placement preferences:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.

Justices Kavanaugh, Barrett, and others were especially concerned about preference (3) because it seems inconsistent with the argument advanced by the federal government (through Deputy SG Ed Kneedler) and tribal parties (through attorney Ian Gershengorn) that ICWA employs a permissible political classification, not an impermissible racial classification. After all, while membership in a Sioux tribe can be analogized to citizenship in a foreign country, the third preference treats membership in any Indian tribe as the basis for an adoption preference with respect to any other Indian tribe rather than to non-Indian adoptive parents. The analogy to foreign sovereigns seems to break down if adoptive parents who are members of, say, the Navajo Nation in Arizona are given priority over a non-Indian couple in Florida with respect to the adoption of a child who is a member of the Seminole Tribe of Florida.

Maybe Democracy Was The Friends We Made Along The Way

by Michael C. Dorf

As I hit publish this morning, we do not know the full results of the voting that ended yesterday. However, it appears likely that, even though Republicans substantially underperformed relative to expectations, they will end up gaining control of the House of Representatives by a modest margin. As of the early morning on November 9, the NY Times Needle gave Republicans an 83% chance of winning the House.

If Republicans can flip seats in two of the remaining too-close-to-call Senate races, they will gain control of the Senate as well. At this point, Arizona, Nevada, and Georgia look like the battlegrounds for this 2-out-of-3-wins contest. In the event that Senate control turns on the outcome of what now looks very likely to be a Georgia runoff (again!), we on the blog will discuss that race in the coming month (presumably including coverage by our in-house Atlanta-based Prof Segall).

What are the takeaways? I'll leave the fate of election deniers in state races for another day. For now, let's talk about Congress.

It's Election Day: What in the World Are People Thinking?

by Neil H. Buchanan

My duties at the University of Florida include being the law school's Director of Global Scholarly Initiatives, which requires that I spend each Fall semester researching in a foreign country.  This Fall's home base has been Vienna, where there was a national election last month.  That election was completely unremarkable by 21st Century standards, with the Austrian neo-fascist right (the local version of Marine Le Pen's bloc in France) losing in a landslide to the center-left (former Green Party) president.  Election Day was barely noticeable, and other than very standard campaign posters (head shots of candidates above short slogans), one would not have known from walking around the city that anything was happening.

And then there is the United States.  Via the interwebs, I have been staying on top of the situation in my home country, where the situation looks quite grim.  I will write a column soon about political violence (and the likelihood thereof) in the US, but here I want to focus not on what might happen because of these midterms but on the mindset of people who are not voting against Republican candidates in today's elections.

To be clear, "not voting against Republican candidates" can mean either not voting for Democrats or not voting at all, which in turn means that there are at least two types of thought processes involved: (1) "I affirmatively choose to vote for this Republican," and (2) "I'm not going to bother voting."  In some contexts, that difference would matter quite a lot, because of course people can have only one or a small number of reasons to actively vote for Republicans but many reasons to be passive.

Here, however, I think that there is a surprising convergence between those two choices, because the stakes in this election are obviously so high -- and because President Biden and the Democrats have been very clear about what those stakes are.  When they have said that "democracy is on the ballot" or warned of a "path to chaos," they have been refreshingly blunt, and it becomes much more difficult to see how people can say, "meh, whatever," while choosing not to vote.  That non-vote seems more active and less passive.

In any case, I do think it is important to think about what might be going through people's minds when they have every reason to know that Republican success in these elections will lead quickly and inexorably toward high-impact disasters.  What are people thinking?  Or, to put the point more clearly: What are people thinking?

Should District Judges Appoint Historians as Neutral Experts? The Legislative Fact Problem

by Michael C. Dorf

Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence.

Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing!

Whether or not Judge Reeves was just trolling Justice Thomas, his question raises an important issue that the Supreme Court has, so far as I can tell, never resolved: how to resolve questions of what lawyers call "legislative fact." In today's post, I'll sketch the problem and discuss a solution proposed in the leading scholarly treatment of it--a 2016 article by NYU Law Professor Kenji Yoshino in the William & Mary Law Review.

Originalism as Dangerous Nonsense

 By Eric Segall

In my 2018 book Originalism as Faith, after canvassing numerous different and often conflicting forms of originalism, I argued that many originalists hold on to the idea that text and history should be used by judges to resolve hard constitutional cases because they could not accept the realist critique that the Supreme Court's decisions are ideology or values all the way down. I also suggested that on the ground originalism did very little work in generating decisions by courts and that the theory was mostly an after-the-fact rationalization for decisions made on other grounds. 

With the addition of three alleged originalists to the Supreme Court and a host of so-called originalists on the lower courts, we have now seen much more originalism in action that we saw prior to 2018. The pinnacle of this movement came last June in New York Pistol & Rifle Ass'n. v. Bruen, in which the conservatives signed an opinion by Justice Thomas instructing courts to undertake a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” The Bruen Court made clear that judges should not take into account policy concerns when reviewing the constitutionality of gun legislation. 

If Only the Democrats' Internal Debate About Focusing on Social or Economic Issues Were Interesting or Useful

by Neil H. Buchanan

One of the most predictable debates in any campaign season pits the Democrats who want to focus almost exclusively (or even entirely) on so-called kitchen table issues against those who want to spend some amount of time talking about social issues that are purportedly non-economic.

Careful readers of the previous sentence surely noticed that although I called this debate predictable, I described it in a relatively unusual way.  First, the Democrats who express concern about social issues do not -- and never have -- been absolutists about their side of the debate.  People who want to talk about racism, sexism, and other such issues have always been willing to say that of course standard economic issues are important and must be considered, asking only for some consideration of issues that affect marginalized groups (groups that add up to more than half of the population, even when only gender is considered).  Meanwhile, those on the other side of the Democratic debate are at best only grudgingly willing to say that it is OK to talk about non-economic issues in very limited circumstances, and as little as possible.

Second, in describing social issues as "purportedly non-economic," I am trying to remind everyone -- primarily myself, to be honest -- that the consequences of our ongoing problems with racism, sexism, and similar matters very much include dollars-and-sense outcomes for marginalized groups.  Yesterday's Supreme Court argument about affirmative action is higher education is one obvious example, but we need only consider the perverse combination of Republicans' insistence on women (including poor women) carrying fetuses to term but then refusing to help those new mothers with the costs of rearing children.

I want to be clear, then, that the framing that we usually see in the press -- progressives want to talk about social issues, but others want to talk about family budgets -- is both inaccurate and damaging.  Moreover, it is damaging in a predictably anti-progressive direction, as it allows supposedly "realistic" pundits and reporters to make it seem that social issues are mere special interests that distract from a winning campaign formula and alienate mythical swing voters.

After describing a nuance about the Democrats' never-ending internal debate (which the press loves to stoke), I will note an aspect of the debate that seems to contradict my progressive presumptions.  Exploring that issue will highlight what is truly at stake when we talk about social pathologies that harm people in very different ways.

Donor, Legacy, and Athlete Preferences in Higher Education Admissions: Art Museum and Squash Edition

 by Michael C. Dorf

During the oral arguments in the University of North Carolina and Harvard affirmative action cases, various of the conservative Justices pushed the programs' defenders on what race-neutral steps the colleges had been taking to achieve greater student-body diversity (in particular to boost enrollment of African American, Latinx, and Native American students). These Justices appeared to accept the argument by the lawyers for Students for Fair Admissions (SFA) that the Constitution and Title VI contain a kind of exhaustion requirement: before colleges may use race as a plus-factor in admissions, they must exhaust race-neutral means of achieving racial diversity.

Much of the discussion on this point focused on admissions preferences for varsity athletes (A), legacies (L), children of large donors (D), and children of current university faculty and staff (C), collectively abbreviated as ALDC preferences. The record with respect to ALDC preferences was stronger for SFA in the Harvard case than in the UNC case, so I'll focus on Harvard. In so doing, however, I should note that the record is hardly strong for ALDC, even in the Harvard case. Defending Harvard, attorney Seth Waxman noted that simply eliminating affirmative action would lead African American enrollment at Harvard to decline from 14 to 6 percent, while also eliminating ALDC preferences would lead to a further decline to 5 percent. So the attack on ALDCs looks like a non sequitur.