It remains unclear where we are heading in Iraq and whether the IRS investigation will gain much traction. But this was a pretty good week for the Supreme Court.
Wednesday, SCOTUS decided unanimously that police need warrants to search cellphones. As the New York Times reported:
“While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies.”
Andy Greenberg has a useful piece on the decision at Wired.
Thursday, SCOTUS decided unanimously that three of President Obama’s recess appointments to the National Labor Relations Board were unconstitutional. The New York Times editorial board was not happy (insert look of surprise here). Neither was Justice Scalia, who wrote:
“A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding,”
While Scalia would have liked more, I still rank this a win.
The fact that both of these decisions were 9-0 and both moved the ball in the correct direction should give us some pleasure as we enter the weekend.
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The Economist has come out against race-based affirmative action in the United States, a surprising (to me) move given the magazine’s socially left-of-center outlook (e.g., for legalizing drugs and banning handguns). Indeed, the way in which affirmative action as currently practiced discriminates against Asians even more than against whites is difficult to justify. (I argued here that state-sponsored affirmative action is not inherently unjust.) Moreover, the paternalist case against affirmative action cannot be dismissed out of hand:
[After California banned affirmative action, t]he number of blacks and Hispanics enrolled fell, particularly at the flagship schools, Berkeley and UCLA.
What was more surprising was that in the entering class of 2000 a record number of black students graduated on time. Mr Sander and Mr Taylor argue that previously low black graduation rates were a result of the mismatch which occurs when a student granted preferential admission winds up at an institution for which he is not academically suited. He begins at a marked relative disadvantage and falls behind quickly. His grades get lower and lower and in the worst cases he loses confidence and fails to graduate.
Mr Sander and Mr Taylor attribute a host of bad outcomes to mismatch. For example, more black than white high-school seniors aspire to science and engineering careers, but once in college twice as many black students as white abandon those challenging fields.
Note that if you buy this argument against affirmative action, you should also oppose “legacy” preferences in affirmative action (and rational parents would not oppose the move, leaving no apparent constituency on the other side of the question).
Nevertheless, affirmative action in the United States is not as noxious as ethnic and racial preferences in many other parts of the world. In Sri Lanka, ethnic Sinhalese university applicants receive large preferences relative to ethnic Tamils. The reason seems to be nothing other than that Sinhalese are the majority in the country, and they will damned well discriminate against minorities however they please. (Such is the reality of democracy in the developing world.) In Malaysia, Malays and other bumiputera receive wide-ranging preferences in education and business. (For instance, firms must have at least 40% Malay ownership.) Chinese and Indians suffer.
So in most of the world, “affirmative action” just means that politically dominant ethnic groups get to repress the politically subordinate. But in the United States, affirmative action does not mean the translation of the ethnic majority’s political power into other spheres of social life. Blacks in the U.S. remain a small minority of the population and thus suffer from collective political disadvantage (due in part as well to their overwhelming support for one political party, which leads politicians to take their votes for granted). Eliminating all educational and economic advantages for blacks will alienate most of them. Of course, many African-Americans oppose affirmative action — but most still support it and see a role for it. The Supreme Court should be reluctant to impose a judicial solution to a sensitive political problem. A sweeping ruling constitutionally prohibiting virtually all racial preferences in all walks of life is more likely to increase racial tension than diminish it. The justices should apply the law but do so humbly, with the understanding that nine justices cannot foresee all future political contingencies.
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The New York Constitution prohibits pork-barrel spending and corporate welfare: government money for private projects. Here’s what the clause says:
[T]he money of the state shall not be given or loaned to or in aid of any private corporation or association, or private undertaking.
Couldn’t be clearer, right?
Wrong. The state supreme court today ruled – in a split decision – that this constitutional provision is unenforceable. The state can give money to whomever it wants so long as it is not “patently illegal” to do so.
In dissent, Judge Robert Smith wrote:
I have defended before, and will no doubt defend again, the right of elected legislators to commit folly if they choose. But when our Legislature commits the precise folly that a provision of our Constitution was written to prevent, and this court responds by judicially repealing the constitutional provision, I think I am entitled to be annoyed.
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