My thoughts on the Supreme Court decision that concludes a seven-year battle by the parents of the Seattle students. The issue is affirmative action, and in the decision under discussion, the Supreme Court struck down a diversifying plan as unconstitutional.
1. There’s a lot of yelling going on, even though if you bother to read the majority opinion, you find the Supreme Court didn’t gut much of anything, eviscerate anything, throw anything out, overhaul much of anything…it simply decided something the way our leftists don’t like things decided, 5-4. Seems to me, the reason we’re hearing so much about it, is in Grutter v. Bollinger it was Sandra Day O’Connor who was a swing vote — she’s no longer there, and now the Court is perceived to have ruled the other way. Panic! But read the decision. The methodology for deciding these issues is substantially consistent with the methodology implemented before. The news is in the politics, and the appearance that the ruling has something to do with changing faces on the Court. It would be difficult to assert that this is really what happened. If that is really what happened, it would further be difficult to assert this is a bad thing. O’Connor’s comments in the majority opinion of Grutter, at least in my mind, represent a potential low point in her career.
2. This decision is unusually hard to find. Every year as the fireworks stands open, the Supreme Court closes out a term and hands down a small picnic-basket of controversial opinions, about which our newspaper colums and our blogs sing the praises, or complain, or which our television pundits then use to predict dire consequences like dogs & cats living together. I find it interesting that with this one, you have to do a great amount of digging to just get past the complaining, and scoop up some raw data you can use to make up your own mind. The decision is Parents Involved in Community Schools v. Seattle School District No. 1, et al, and you can find it here.
3. The Washington Post notes ominously that the decision “culminates a fractious term in which the new Roberts court moved the law significantly to the right.” I, on the other hand, take note of something else: On Planet Journalism, the Supreme Court never moves the law significantly to the left. Didja ever notice that? Our Supreme Court never, ever, ever “moves left.” It issues landmark decisions. When those “landmarks” are found to have started precedent that is open to abuse, or is just plain bad, and the Supreme Court takes action to repair the damage — our journalists somehow don’t see that as plugging a hole in a dam or fixing a leaky hose. It’s always a “shift.”
4. Should I choose to go vertical on the 185-page opinion, and join the ranks of bloggers bloviating about how they would handle it, I’ve got a decision ahead of me: Comment about the Court’s consistency with it’s own jurisprudence, or about the Court’s consistency with common sense. I have never agreed with this business about “compelling interests,” at least as that phrase is used to describe a principle that can be put up against the text of the U.S. Constitution, and emerge victorious. I always found that horrifying. Maybe President Bush should do that with the interrogation of terrorists who want to blow us all up, and with the warrantless wiretapping issue: Government has a compelling interest in providing voters like me, with bodies of dead terrorists, because that’s what we want to see rolling on in when we vote. But I digress.
5. Barack Obama is deeply invested in CALWWNTY: “We have made enormous progress, but the progress we have made is not good enough.” Now I know how intelligent the Obama supporters are, and even more importantly, I know what Obama himself thinks of them. The mindset is so simplistic, the wording so constant, that I’m now closing out a year-and-a-half of lampooning it — and nobody’s bothered to sit down with a thesaurus and find a substantially different way of phrasing it. Let’s face facts: We’ve Come A Long Way, We’re Not There Yet is just another way of saying “I think my supporters are all drooling idiots.”
6. Hillary Clinton remains as consistent as I expect Obama will be, but in a different way. “If HIV-AIDS were the leading cause of death of white women between the ages of 25 and 34 there would be an outraged, outcry in this country.” Clinton is amazing this way. Since 1992, her husband has changed his tactics based on the circumstances at hand, with amazing flexibility — and she herself has frustrated her constituents by waxing and waning in her support of certain causes, like socialized medicine, or finding new ways to hate George Bush. But her political tactic has always been the same: Someone’s overly-privileged, someone’s gotten away with shenanigans, and Hillary’s here to take ‘em down a peg. If the issue under discussion is missing this kind of villain, Hillary will inject a villain into it. You could adjust a precision timepiece by watching her do this. In my lifetime, I don’t think I’ve become aware of a more negative candidate, male or female, for anything.
7. Chief Justice Roberts’ majority opinion is sprinkled with arguments, that appear pretty sound from where I’m sitting, reconciling it with previous decisions on the same issue. This seems to be the source of the criticism from Scalia about which I’ve been hearing so much. For the issue under consideration, I’m not sure the Scalia/Roberts split is as important as it has been made out to be. But the quote of the day has to go do C.J. Roberts, in the second-to-last paragraph of the majority opinion, pp. 40-41: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
8. And as is usually the case, our liberals are sucking wind and exploring ways to chart new degrees of suckage. They’re haughtily intoning to each other, and anyone else paying attention, to be upset and angry about this decision without having read it yet. Observation: Progressive movements are invariably — at least the non-anti-war ones — about curing a social ill. “Curing” is something that, assuming it involves an effective remedy, we are going to presume will involve a diminishing level of intensity and effort over time. You’re out of shape, you’re going to adopt an exercise regimen that will hurt like the dickens at first, but will eventually become second nature. You owe someone a lot of money, you’re going to make regular payments until someday, the last one will have been made. We expect an effective cure to asymptotically diminish in intrusiveness and overall intensity, with the passage of time. It’s just the way cures are supposed to work. Progressive “cures” are never expected to be this way, and nobody’s ever explained why that is, to my satisfaction. Progressive cures for our social ills, championed by the left-wing, have to be exploding constantly. Every year, every decade, every generation: Bigger, broader, more intrusive, more expensive, more in-your-face. This doesn’t impress me as the way an effective remedy is supposed to be.
Update 7-2-07: Wow, did James Taranto ever get a lick in on this:
the most striking dissenting statement in Parents Involved was Justice John Paul Stevens’s conclusion:
It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.
There’s a lovely irony in Stevens’s appealing to the authority of dead white males while styling himself the champion of oppressed minorities. But by invoking the ghosts of justices past, Stevens reveals that his views of the subject are rooted in personal preference and not legal principle.
It’s reminiscent of another pronouncement a justice made 15 years ago:
I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.
That was Harry Blackmun in Planned Parenthood v. Casey, which upheld the “constitutional” right to abort that had sprung from Blackmun’s imagination 19 years earlier. Blackmun retired in 1994 and died in 1999.
Stevens is 87 years old. He cannot remain on this court forever either. Like Blackmun in his twilight years, he seems dimly aware that “law” based on the preferences of men is as evanescent as the lives of men. Only principle endures.