The Outsider Perspective Issue 350 | The Beltway Outsiders

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Good Friday Morning! Especially (and begrudgingly) to the LSU Tigers baseball team. They beat the Florida Gators in an all-SEC College World Series matchup to take home the national title. Both teams beat Tennessee en route to the final round, which hurt me. But it was fun watching Florida lose. Paul Skenes is one of the best college pitchers I’ve ever seen, and his victories in the College World Series games were impressive – he’s a future MLB star.

This week, I’m getting into the Affirmative Action case at the Supreme Court. I went into it thinking I’d be writing one thing but had a different reaction than I expected—links to follow.

Quick hits:

I’m writing on a Thursday night. I say that because I expect the Supreme Court to release opinions on the cake baker in Colorado and the student loans cases Friday morning. We’re at the end of the term, so all the more challenging cases are dropping. I have a column below for the Conservative Institute on a religious freedom case that won 9-0 yesterday. Overall, a good day at the Supreme Court. Most Court prognosticators expect Alito to have the Baker case and Roberts to write the student loans case. TBD.
Law Prof Derek Muller reminded everyone of an infamous post by liberal law prof Mark Tushnet from May 2016. At the time, Trump was winning the primaries but lagging Clinton badly, and Scalia had only been gone a few months. Tushnet wrote in a blog post that went viral on the left and right that liberals needed to make a list of cases they wanted to overrule immediately. As most did then, he believed the Supreme Court would be lost to conservatives for a generation. Cases Tushnet wanted to get rid of for better liberal opinions included Planned Parenthood v. Casey and CA v. Bakke. Casey left the scene last year, and Bakke (which dealt with affirmative action) got struck down Thursday morning. Had you told anyone those cases were getting overruled, but conservatives would be writing them in May 2016, not many would have believed you. McConnell’s high-stakes gamble to withhold a vote on Merrick Garland and Trump’s shocking victory forever altered the trajectory of US jurisprudence. Several other cases Tushnet mentions are likely going down, too – with conservatives writing them.
I will no longer be using FiveThirtyEight polling analysis moving forward. Nate Silver is no longer with the site, and the person Disney put in Silver’s place is destroying it. ABC News/538 sent Rasmussen Polling a faux-threat letter, demanding they explain various aspects of their polling or risk being banned from 538’s site and polling averages. The fact that a polling aggregation site believes it has that kind of power is prideful in the extreme. Nate Silver called it a Spanish Inquisition. I’m expecting Nate Silver to either start or land somewhere new. In the meantime, I’ll be using RealClearPolitics. It’s a shame because 538 provided a decent analysis of news and sports at one point.

Where you can find me this week

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[06/26/2023] The ‘Russian Coup’ that We Can’t Trust or Verify – Conservative Institute

[06/30/2023] Religious Accommodation Wins Unanimously at Supreme Court – Conservative Institute

Affirmative Action falls, along with the Legal Left.

By now, you’ve likely seen the headlines that affirmative action is no more in college admissions. That would be true. We’re at the end of the Supreme Court term, and the more challenging, divisive cases are coming out before the summer recess. Several more cases like this will drop before we get to July.

The case was decided 6-3, with Chief Justice John Roberts writing the majority opinion. Justices Sotomayor and Jackson wrote dissents. Justices Thomas, Gorsuch, and Kavanaugh wrote separate concurrences.

When the decision first dropped, I assumed I’d write this newsletter on the case and summarize it. But after getting through the majority opinion, which lays the dissents to waste, I came away shocked at the dropoff in legal argumentation from the liberal wing of the court. John Roberts is not a flamethrower, and I’ve seen him make more jabs at his conservative colleagues than the left. That did not happen in this case – Roberts nuked the left wing of the court from orbit and salted the remains.

And what’s even more shocking is that the liberals earned it! And I don’t mean this in a partisan way. They wrote poorly drafted political schlock that they passed off as dissents. Jeff Blehar is right on Jackson’s dissent, “In all honesty, her clerks let her down. One of them ought to have taken her aside and explained that on SCOTUS you don’t let prose that poorly drafted out the door.“

When I say poorly drafted, I don’t mean typos or badly written. The dissents cited wrong cases, ignored whole lines of case law, and somehow managed to cede the entire legal argument to the conservatives. See this example of Jackson citing a wholly untrue statistic that was disproven – her clerks never checked it. Meanwhile, the dissents went off unhinged rants better suited for MSNBC late-night broadcasts.

My read of this dropoff: this is the first term that the liberal wing misses Ruth Bader Ginsberg. She would have never written dissents like this. She’d never sign off on legally incoherent, case law ignorant, rant-laden tripe that never engages with the main throughline of conservative arguments. I disagreed with RBG on many things – and one of the reasons I knew we disagreed is because she never left a point untouched. She and Scalia sparred over everything.

Also notable: Sotomayor and Jackson wrote separate dissents. There is no unified voice as you’d get with RBG (I always had mixed thoughts on that approach, but it’s notable the dropoff in intellectual firepower the left wing has without it). There’s no unified voice from the liberal bloc. It’s all ad-hoc rambling.

When I say these are bad arguments, here’s an example from an early footnote:

The principal dissent, for its part, claims that the Court has also permitted “the use of race when that use burdens minority populations.” (opinion of Sotomayor, J.). In support of that claim, the dissent cites two cases that have nothing to do with the Equal Protection Clause. (citing United States v. Brignoni-Ponce; a Fourth Amendment case) and (United States v. Martinez-Fuerte; another Fourth Amendment case).

Sotomayor cites Fourth Amendment cases to argue against 14th Amendment claims relating to affirmative action. Her comparison is not bad; she’s noting them like they’re an authority. They’re not. Any law student could tell you this fundamental point. Roberts is not wrong on this point, either. Every deficiency he outlines is lethally accurate to the dissent’s point.

After laying out the case law history of affirmative action before the Supreme Court, which every law student learns in their Con Law course, Roberts writes of the dissents:

The dissents here do not acknowledge any of this. They fail to cite Hunt. They fail to cite Croson. They fail to mention that the entirety of their analysis of the Equal Protection Clause—the statistics, the cases, the history—has been considered and rejected before. There is a reason the principal dissent must invoke Justice Marshall’s partial dissent in Bakke nearly a dozen times while mentioning Justice Powell’s controlling opinion barely once (Justice Jackson’s opinion ignores Justice Powell altogether). For what one dissent denigrates as “rhetorical flourishes about colorblindness,” (opinion of Sotomayor, J.), are in fact the proud pronouncements of cases like Loving and Yick Wo, like Shelley and Bolling—they are defining statements of law. We understand the dissents want that law to be different. They are entitled to that desire. But they surely cannot claim the mantle of stare decisis while pursuing it.

Roberts also calls out Sotomayor for attempting a side argument on the broader issues of past discrimination of these institutions. He points out the weakness here and what she’s attempting in a footnote:

Perhaps recognizing as much, the principal dissent at one point attempts to press a different remedial rationale altogether, stating that both respondents [Harvard and UNC] “have sordid legacies of racial exclusion.” (opinion of Sotomayor, J.). Such institutions should perhaps be the very last ones to be allowed to make race-based decisions, let alone be accorded deference in doing so. In any event, neither university defends its admissions system as a remedy for past discrimination—their own or anyone else’s.

The universities in question argued that the court should trust them in making explicit race-based decisions on admission. Roberts points out that if these institutions have the admittedly racist past they claim, then that destroys any trust they should be accorded to ignore the constitution’s guarantees.

Roberts wraps up his response to the dissenters with this hammer drop:

The principal dissent wrenches our case law from its context, going to lengths to ignore the parts of that law it does not like. The serious reservations that Bakke, Grutter, and Fisher had about racial preferences go unrecognized. The unambiguous requirements of the Equal Protection Clause—”the most rigid,” “searching” scrutiny it entails— go without note. And the repeated demands that race-based admissions programs must end go overlooked—contorted, worse still, into a demand that such programs never stop.

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown v. Board of Education. It depends, says the dissent.

That is a remarkable view of the judicial role—remarkably wrong. Lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive, that it required a Second Founding to undo. “Justice Harlan knew better,” one of the dissents decrees. (opinion of Jackson, J.). Indeed he did:

“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates clas- ses among citizens.” Plessy v. Ferguson, (Harlan, J., dissenting).

Plessy v. Ferguson is regarded as one of the worst cases in Supreme Court history, and it established the “separate by equal” rule. Roberts ties the dissenters to the Plessy majority opinion while pointing out that today’s majority stands with the dissent in Plessy.

And he’s right.

Thomas and Gorsuch go to town on the dissents, too. I’m still working through those. As anyone would expect, Thomas wrote a textbook-length response to the dissents. He and Gorsuch take turns tag-teaming on various points through their concurrences.

But it’s John Roberts that stands out. He usually tries to build consensus and ensure majority opinions do not enter the back-and-forth fray of concurrences and dissents. That he did that here is notable. He made multiple points on the deficiencies and weaknesses of the liberal arguments.

Ruth Bader Ginsberg would not have made the arguments Sotomayor and Jackson used here. She’d have never allowed herself to forget or omit case law points, ignore court history, or anything else. These are basic legal points, and the dissenters failed on every count.

Kagan is easily the best writer on the legal left and a tactician on par with Roberts and Kavanaugh. She commands immense respect from most on the legal right. Her silence, in this case, is noticeable. I have no explanation for why she allowed the dissenters to run into this buzzsaw. I know she read the arguments made and knew they were terrible.

This case shows the importance of groups like The Federalist Society for the right. Every idea, argument, or comment gets tested, argued for and against, and put through intense academic and legal exercises. If it survives that, it can stand on its own. That mentality shines under challenging cases like this because it forces sharp analysis and writing.

Ruth Bader Ginsberg typically provided that for the left. She’s gone. The left has no similar organizations that force it to think about these arguments. Instead, two sitting Supreme Court justices wrote dissents that are barely above a rant on a message board or social media. It’s an utter embarrassment for leftist/progressive legal thought.

And if John Roberts is pointing this out in a majority opinion, you know you’ve lost the plot. Good and valid legal arguments could be made in this case for liberals. I’ve talked with people who agree and disagree with the opinion. None of them made the idiotic rambling thrown on paper here.

If you’re a liberal and hoped that this liberal wing would provide an intense, intellectual check against conservative/libertarian legal thought, you might want to reassess. Neither Sotomayor nor Jackson appears ready to take that role, and Kagan is remarkably missing in action. If Kagan does not rise to the “happy warrior” role that RBG provided for the left, the legal left is about to enter an intellectual winter.

If you’re a conservative, this doesn’t mean much. But I think it’s important to have strong thinkers and writers at the top court to check on a given argument and be willing to challenge an idea. Even if you don’t win, you can strengthen the majority opinion, which creates better case law. Instead, the left has a growing embarrassment on its hands. There’s no other way to read dissents that can’t even engage in the most fundamental legal writing that discusses case law history. It’s embarrassing to see and read.

Links of the week

Women Interviewing for Bill Gates’s Private Office Were Asked Sexually Explicit Questions: Female job candidates say extreme vetting process by a security firm sometimes included questions about pornography and sexual histories; Gates’s office says such questioning would be unacceptable – WSJ

The Unsurprising Affirmative Action Decision in Students for Fair Admissions v. Harvard: The Court’s core ruling is unsurprising, but its future effects are uncertain. – Volokh Conspiracy

Thoughts on the Supreme Court’s Ruling in the Harvard and UNC Racial Preferences Cases: A preliminary assessment of today’s decisions. The majority rightly struck a blow against the use of racial preferences for purposes of advancing “diversity” in education. But there are some flaws in its reasoning. – Volokh Conspiracy

Ketanji Brown Jackson’s Dissent Is An Argument For Institutional Racism – David Harsanyi, The Federalist

The Supreme Court Fulfills the Constitution’s Color-Blind Promise: Discrimination in university admissions is legally dead, at last. – City Journal

Race Discrimination Loses Its Legal Protection – National Review

Affirmative action is done. Here’s what else might change for school admissions: Civil rights groups plan to challenge the advantages children of alumni receive in the admissions process. – Politico

New Chinese Law Raises Risks for American Firms in China, U.S. Officials Say: U.S. counterintelligence officials say revised Chinese law potentially turns normal business activities into espionage – WSJ

Moms for Liberty supporters were doxxed and physically threatened – Washington Examiner

U.S. Home Prices Posted First Annual Decline Since 2012 in April – WSJ

$100B wealth migration makes the south center of U.S. wealth – Advisor Magazine