Having read the two Supreme Court race preference decisions today, a few brief thoughts that came to mind:
- While not shocked, I was a little surprised (although I shouldn't have been) to see these cases come down as they did. I couldn't see any real difference between the undergraduate and law school policies, and assumed that a judge trying to evaluate the cases would come down on them the same way. In retrospect, I'm convinced I was right in my evaluation -- the two policies being challenged are very similar -- and naive in my politics. The issue was never really whether the policies were similar, but whether they looked different enough so that people could pretend that there were distinctions. With Sandra Day O'Connor being the key vote, of course the court was able to find distinctions. Where some people split hairs, O'Connor splits invisible specks of dust.
- Here's something to ponder: if there had been only one case, instead of two, how would Justice O'Connor have ruled? It's obviously harder to split the difference -- not that O'Connor wouldn't have tried -- when you have to make a ruling one way or the other. By presenting her with two cases, the University of Michigan gave her an easy out: strike down one program, and uphold the other.
- Does O'Connor receive kickbacks from trial lawyers? These decisions, while definitively clarifying one point -- that "diversity" is a compelling interest which justifies racial discrimination -- give very little guidance to schools. They know they can't explicitly give fixed points for race, that they need to provide "individualized" assessments of candidates. But unless they copy the Michigan law school plan exactly -- and it may be rather difficult to scale up a plan designed for a few hundred students to a situation involving tens of thousands of applicants -- they're going to be subject to litigation from every third non-minority student rejected.
- These decisions may create muddled law, but they make one thing abundantly clear: diversity is a total red herring, a desperate attempt to find some rationalization for a policy everyone knows can't be justified. George Bush was criticized by his political adversaries before the Iraq war began for allegedly giving continually shifting reasons as to why war with Iraq was justified, but he had nothing on supporters of race preferences. In O'Connor's opinion alone, we hear, inter alia, that diversity (as represented by a "critical mass") can help teach whites that blacks can think differently -- though one would hope that an elite school would only admit applicants who already knew this -- that diversity teaches white people to understand black people, that diversity teaches white people to get along with black people, and that diversity will cause citizens to have faith in our politicians. But nothing explaining why any of these represent a compelling state interest.
- Justice Scalia really doesn't care about making friends, does he? What other justice would dare write that the respondents' argument -- one accepted by the court's majority -- "challenges even the most gullible mind."?
I'm sure much more will come to me as I have more time to digest these cases.