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June 25 2013

Roberts Court: Deciding Not to Decide

Charlotte Hays

When President Obama attacked a Supreme Court ruling in his 2010 State of the Union address, we knew that a new day had dawned.

Presidents didn’t usually do that sort of thing. But I’m wondering if the president’s attack wasn’t actually quite effective. I wondered that again yesterday when the disappointing Roberts Court—which sometimes seems more interested in preserving itself than in ruling on the law—wiggled out of ruling on affirmative action. 

In a 7-1 ruling (Justice Elena Kagan recused herself) the Court avoided addressing the issue of racial affirmative action by sending the case back to a lower that is directed to determine if the University of Texas, the defendant, is using racial classifications correctly in its admissions policy:

Because racial classifications inherently are "odious to a free people," universities "must prove that the means" they use "to attain diversity are narrowly tailored to that goal," [Justice Anthony Kennedy] wrote, adding that UT must demonstrate "that available, workable, race-neutral alternatives do not suffice."

If racial classifications are inherently “odious to a free people,” why do they continue?

While signing onto the majority opinion, Justice Clarence Thomas nevertheless raised the right issue. George Will, who writes this morning about the tangled web the Court has woven on affirmative action, observes:

In an opinion concurring with the majority’s conclusion that strict scrutiny was required but not applied to Texas’s use of race, Justice Clarence Thomas says of “racial engineering”: There is no compelling governmental interest in whatever educational benefits supposedly flow from racial diversity that must be achieved by racial discrimination.

Thomas should tell the chief justice that the way to stop discrimination on the basis of race is to stop pretending that strict scrutiny of such discrimination somehow makes it something other than what it is.

Theodore R. Johnson, who has served as a professor at the Naval War College, wishes that the Court had taken its golden opportunity to drive a nail into the heart of affirmative action. Johnson is tired of people thinking his achievements are based on his race:

This is the ugly side of racial preferences that gets little attention. No matter what one may think of the policy, the truth is that with it comes an undercurrent of implied inferiority. Even in instances when a black or Hispanic is the best qualified and well-matched for a particular career or academic opportunity, the perception of unfair favoritism follows the person, hovering in the ether. The same suspicion often follows women who succeed.

The "affirmative action" measures that were supposed to provide new opportunities for underrepresented groups also prematurely and unfairly burdened them with the presumption that they're undeserving.

The Supreme Court's 7-1 Fisher v. University of Texas at Austin ruling on Monday did little to change this unhappy state of affairs.

On the subject of the Court, disappointed though I am, I can’t refrain from saying a few words about Dana Milbank’s nasty column this morning about Justice Sam Alito. Milbank writes that Alito, “a George W. Bush appointee,”  publicly “mocked” Justice Ruth Ginsburg, “the second woman to serve on the high court,” who is “17 years [Alito’s] elder.”

Of what did this mocking consist? Alito “shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling.” This was a repeat of Alito’s “antics” at the 2010 State of the Union address when he mouthed the word “No.” Eye rolling in the court! The horror!

Milbank opines that Alito engages in such “middle school” behavior sometimes when Justices Kagan or Sotomayor speak:

Another time, Sotomayor, reading a little-watched case about water rights, joked that “every student in the audience is going to look up the word ‘preemption’ today.” Alito rolled his eyes and shook his head.

C’mon—it’s hard not to roll your eyes and shake your head in the face of this kind of condescension on the part of Justice Sotomayor.

But most of us are rolling our eyes and shaking our heads at yesterday’s ruling.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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