SCOTUS reasoning flawed?

Great Debates
1

For some time now I have had a certain sense of malaise at the Supreme Court. I have a sense that too many justices are voting for something because they decide it was right, and then they find the legal justification. This seems to lead to all sorts of logical inconsistencies and, I feel, mocks the very position they hold.

This will not be a rant against Judicial Activism. I don’t really like that, and too many judges do take the law into their own whims (ahem 9th Circuit ahem) but in and of itself it is neither god nor bad, and good and legally appropriate things have been done with it.

I should probably point out that I don’t agree with Affirmative Action, but that is neither here nor there.

However, taking the recent U of Michigan case as an example, SCOTUS basically said that you can use race, you just cannot assign a set, open, absolute value to it.

Well, why not? As a recent Slate article pointed out ( http://slate.msn.com/id/2084805/ ) The Courts decision was a hair-splitting mushfest. The court didn’t say yes and it didn’t say no, and what we get is a mealy mouthed “maybe” which means, “sort of yes, but only if we all pretend we didn’t say yes”.

As I said, I don’t agree with Affirmative Action, but regardless of whether or not it is Constitutional, the court messed up badly. Had it simply said, yes, I would have accepted that fact - I’m not sure that AA is against the Constitution, regardless of its moral appropriateness.

There was a similar problem in the “Mental Illness andDeath Row” case a while back, but for the life of me I cannot remember what my objection to it was. I think it was the vague and contradictory language used. Sorry, thats not very helpful. Regardless, I had no objcetion had the court simply said “Yes” or “No”, and explained why and under what circumstances.

So, basically, by objection to the way SCOTUS does business is: At best they talk out of both sides of their mouth. At worst, they talk out both sides and still don’t say anything.

Would you like to know more?

2

The dissents of conservative Justices Thomas and Scalia also criticized O’Connor’s legal reasoning. It’s noteworthy that Michael Kinsley is a liberal with simlar complaints. Richard Cohen is another liberal pundit with a similar reaction.

I have mixed feelings about the outcome. ISTM that a moderate amount of racial preferences does some good, although it has some costs. On a personal note, my cousin was accepted in medical school thanks to her race, and she’s a fine doctor. Her children got into top-notch colleges, and they did OK, but their lives wouldn’t be any different if they had gone to lesser colleges.

The worst aspect of O’Connor’s decision was the finding that diversity is a compelling interest – important enough to justity abrogating people’s Constitutional rights. The Court ruled that the Constitutional ban on racial discrimination could be ignored in this case. It’s unhealthy that civil liberties can be casually dispensed with by the creation of a “compelling interest.” When Ashcroft says there’s a compelling interest in holding terrorism suspects indefinitely without a trial, the Courts have agreed with that also.

She never even defines diversity. AFAIK universities want to give preferences to “under-represented minorities.” Given the differences in cultures, there will always be differences in participation by groups, ethnic groups, economic classes, geographic, etc. This formulation encourages universities to continue using preferences forever. For some reason, most colleges seem to prefer to use preferences instead of just admitting the most qualified applicants.

OTOH “diversity” doesn’t require a proportional number of Caucasians and Asians at traditional black colleges. So, it has a different meaning in those cases. It’s terrible to have a word that can be use to justify taking away people’s civil liberties, but one doesn’t even know what the word means.

Nor is there much of an analysis of whether affirmative action has really been successful or necessary. She accepts the theory that a diverse campus including under-qualified minorities is better for all students, although there’s quite a bit of evidence to the contrary.

It seems pretty clear that O’Connor could have just as easily found that both the undergraduate and Law School AA plans were Constitutional. She could have easily that both were unconstitutional. It seems that Constitutional Law means making policy decisions and then backing into them with whatever legal reasoning one can come up with – at least in this case.