Unsettled Law

Before you begin your thinkpiece, the Supreme Court DID NOT strike down Affirmative Action

Admission preferences for legacies, donors, employee families and special recommendations are still allowed

The Court struck down Affirmative Action For everyone except WHITE PEOPLE

— Michael Harriot (@michaelharriot) June 29, 2023

Thanks for the heads up, Michael.

Pretty weird to be out again wanting to defend an institution when I don't even think it should exist—or maybe I just think it should be nationalized, like Oxford and Cambridge, except for the law school and business school, those have to go. But it's not really about Harvard, anyway. North Carolina is probably a much more important example, because what will happen there is that Black and Latin people will have less chance to go to Chapel Hill and fall into the less prestigious campuses of the state's system, where they will be less likely to graduate, less likely to go on to postgraduate studies, and overall make less money in the course of their careers. While the white and presumable Asian students who replace them in Chapel Hill won't actually do any better there than they would have done at Asheville or Wake Forest or wherever, because this is what my man Zachary Bleemer found when he looked at the corresponding situation at the University of California when they abandoned affirmative action after a state referendum, Prop 209, ordered them to:

ending affirmative action caused underrepresented minority (URM) freshman applicants to cascade into lower-quality colleges. The “mismatch hypothesis” implies that this cascade would provide net educational benefits to URM applicants, but their degree attainment declined overall and in STEM fields, especially among less academically qualified applicants. URM applicants’ average wages in their twenties and thirties subsequently declined, driven by declines among Hispanic applicants. These declines are not explained by URM students’ performance or persistence in STEM course sequences, which were unchanged after Prop 209. Ending affirmative action also deterred thousands of qualified URM students from applying to any UC campus

While on the other hand, 

Black and Hispanic students saw substantially poorer long-run labor market prospects as a result of losing access to these very selective universities. But there was no commensurate gain in long-run outcomes for the white and Asian students who took their place. It seems like these very selective public universities in California just provided greater value to relatively disadvantaged Black and Hispanic students who came from lower-income neighborhoods, had poorer job networks, relatively less access to otherwise successful peers, and who were thus able to better take advantage of the resources provided by these super selective universities than the white and Asian students who took their places.

I wrote this up a little at the Substack, and links are there. TL/DR is, Affirmative action affirmatively helps Black and Latin students, but dumping it does not advantage White and AAPI students correspondingly. It is not, as we always say, a zero-sum game, and there's some actual proof of that.

I have to pause, in this context, to talk about Justice Thomas, of whom young Conor wrote

Thomas is clearly convinced his own benefits were unconstitutional as well, and has had "pernicious" effects. Perhaps he should offer some kind of reparation payment to somebody. pic.twitter.com/6iFwzH4sME

— Yas You Like It (@Yastreblyansky) July 1, 2023

It's a very sad story. Probably he should have gone to a more liberal school where they'd have tried to build up his confidence (like Justice Jackson, who went to Harvard and became editor of the Law Review while she was there).

— Yas You Like It (@Yastreblyansky) July 1, 2023

I'm serious about this. It's really stupid to call Justice Thomas stupid, as some of us do. He's extremely smart, I think, with a very lively and painful impostor syndrome such as very smart people, especially in disadvantaged groups, often suffer from. A victim of linguistic bias as well—speaking only Gullah as a small child and learning English in school, he grew up with a sense of linguistic inferiority (not justified!) that I am convinced is the reason behind his long-time refusal to participate in SCOTUS questioning.

But he's devoted all those brains to nurturing his neurosis, instead of trying to fix it, and that can't end happily. And it's too bad he feels he has to take out his misery by working to wreck the lives of so many young people from a luckier generation.

And as for Ross Douthat's reverent hommage to "John Roberts, Conservative Statesman":

So what can we say about his work as the Court’s decider? A common interpretation casts him as a careful legal politician and aggressive husbander of the court’s legitimacy — whether via judicial minimalism (the quest for decisions with narrow implications) or via a deference to stare decisis (for all the high-profile exceptions, the Roberts court has been more cautious about overturning precedent than its predecessors).

Note how to get a link to justify that crack in parentheses he has to go back to an assessment made by Jonathan Adler in 2010, asking himself after the big overturnings of October 2017 but before Trump named a replacement for Anthony Kennedy (turned out to be Kavanaugh) whether it was time to rethink that:

The Roberts Court has overturned precedents at a lower rate than its predecessors. Will this soon change?

And it's a kind of silly metric Adler was using, too, as he said, not taking into any kind of consideration how significant the overturning was.

But the story of Roberts the "statesman" just has to go. The story of the Court in the last several years is not that story; it's the story of Leonard Leo manipulating Trump and creating a Republican majority that can throw out any precedent and 86 any "settled law" they feel like, and that's what they've been doing.

I'll have lots more to say on this,