Posts Tagged ‘Supreme Court’

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 Supreme Court’s decision to uphold the Affordable Care Act (don’t call it “Obamacare”!) gives me a great sigh of relief. Although I was one of those who thought it well-nigh impossible to be overturned when the lawsuits were initially filed, over the last several months I began to think that there was actually a chance it could happen. I must say I am enormously relieved that the ACA will remain the law of the land.

The primary reason for my relief is that my health care bills are big, and getting bigger. And as I age, I expect they will continue to go up, as I will need various tests, procedures, medications, and so on. These are expensive! And I really believe that I have been having to pay too high a proportion of those costs myself. I do not ask to get sick, so why should I have to shoulder the entire burden of the costs of my illnesses?

The so-called individual mandate is absolutely necessary to the functioning of ACA. Remember, “affordable” is the first word in its name—and affordability could not be accomplished if younger and healthier people were not required to pay for insurance that they would not use. We assume they will consume less in health benefits than they will pay, which means that the remainder will go to pay for people like me who are the reverse—consuming more than we pay for. Without the individual mandate, many of those younger and healthier people would simply have not bought insurance, because they (selfishly) would have seen it as a bad bargain; but that would have meant that there would not be the funds to pay for others’ health care.

Now, however, they will be required to pay, which means I, like millions of others like me, won’t have to pay as much for my own care. That does mean, I concede, that we are effectively using others to serve our own ends. By not allowing those younger and healthier people the chance to give or withhold their voluntary consent, a Kantian might say we are violating their rational autonomy, their moral agency, their ‘personhood’—using them merely as a means to our own ends, thus violating the Categorical Imperative of morality. But that is far too extreme and restrictive a standard. Sometimes social justice requires violating others’ “rational autonomy” just a bit, especially when others benefit so much from it.

Now it is true that among those younger and healthier who will now be paying for my and others’ health care benefits are my own children. And because they are my children, I do worry about the financial burden that is now placed on them to pay the trillions of dollars this will cost (in addition, of course, to the trillions of dollars in national debt we already have that will also be their burden). But they are still young enough that they don’t really notice it at the moment. And, in any case, I have sacrificed a lot for them, so why shouldn’t they sacrifice for me? Plus, they have been irritating me recently anyway, so I’m not exactly inclined to “put the children first,” if you know what I mean. When it comes time for them to pay these bills, let them figure out a way to do it. Maybe they can put it off on their children.

A perhaps surprising benefit of the ACA is that it makes me care much more about my fellow Americans, especially those younger and healthier ones. I may not care about them as so-called rationally autonomous moral agents, but now I do very much care about them as laborers generating the wealth that will fund my health care. They need to keep working, and I am really concerned about their ability, and willingness, to do so. So I will be thinking about them a lot, and I will be most interested to make sure that Secretary Sibelius adopts appropriate measures to ensure that their willingness to keep working hard does not flag.

This, then, is a great day for our social democracy. The nineteenth-century economist Frédéric Bastiat once wrote that under any government, there are only three possibilities: (1) the few plunder the many, (2) everybody plunders everybody, and (3) nobody plunders anybody. Although Bastiat argued for option (3), that was a pretty extreme position. It wasn’t very practical, and it was also extremely limiting as to what the government could do. The ACA is more like option (1), which, for those of us among the “few,” is clearly the best option.

As it happens, just this week my family and I have been struggling with some relatively difficult health care decisions. Cost was one large part of our considerations. Thanks to President Obama and the ACA, however, cost will soon be a much smaller factor in the health care decisions we make. Also, soon we won’t have to worry about difficult decisions like which tests or procedures to have, or which medications to take. Not only will the costs be borne by others, but the hard decisions will be made by others too. I don’t know who those “others” will be, but another underappreciated aspect of the ACA is that it doesn’t matter—I don’t have to know who they are. Just as long as it’s not me!

If you are my age or older, then, I hope you will join me in celebrating this day. If you are younger, I hope you will come to appreciate how important you are to me and those like me. We need you, now more than ever! The ACA will now give you a chance to really do your patriotic and moral duty. Remember, sacrifice is always involved when doing one’s duty. So if you find your patriotism wavering in the future, just keep in mind that you are doing your part to keep America strong!

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I’ve never voted for a Democrat or Republican for president at a general election. I’ve always voted for a Libertarian (in 2008 I voted for George Phillies, who was on the ballot as a Libertarian in New Hampshire in addition to the official candidate, Bob Barr), and I’ve never had reason to regret my vote. Throughout my adult life (I first voted in 1996), every U.S. president has been worse than the one before, and the major-party candidates they defeated would almost certainly have been just as bad.

One common argument I hear from Republicans is that libertarians should vote for Republican presidential candidates because of the Supreme Court. And indeed, libertarians generally share conservatives’ enthusiasm for the prospect of the Supreme Court’s overturning at least part of the PPACA. However, the recent 5-4 Supreme Court decision authorizing invasive strip searches of all arrestees shows us the other side of the coin: the Supreme Court’s conservatives are disturbingly willing to defer to the executive branch on issues of non-economic personal liberties. Most of the politically controversial cases with which the federal judiciary deals have to do with civil liberties and civil rights. Major Commerce Clause cases come around only once every few years — and even there, Scalia and Kennedy are unreliable.

How will the current Court (more…)

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While my fellow Pilei debate the role that moderate Republicans can play in a future return to fiscal sobriety, libertarian law prof Randy Barnett considers whether, with respect to the PPACA, it even matters. What are the chances that the Supreme Court strikes down the individual mandate, including potentially the entire bill, which lacks a severability clause? Barnett argues that the individual mandate contradicts existing Supreme Court thinking on the “necessary and proper” clause, and that the mandate represents a legally unprecedented “commandeering of the people” by the federal government. If the health care bill remains unpopular by the time the case reaches the Supreme Court, he muses, there may well be five votes to strike it down.

HT: Hit & Run.

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In its usual flurry of end-of-term decisions, the Supreme Court issued an important opinion affecting liberty on college campuses (or what’s left of it).  The opinion concerned the lawsuit by a Christian group at the Hastings College of Law, a public school affiliated with the University of California.  The Christian group was denied the right to form an official student organization because they employed admission requirements that discriminated against homosexuals.  They are apparently the only student organization denied official status (and funds) in the history of the law school.  Many of the groups on campus support activities and causes that Christians and others find immoral.  At least they should be allowed to form their own group in opposition to these groups, but the Court upheld their right to form an official group.

I’m quite unclear about the best way to capsulize the arguments in this case and comment on them.  Perhaps Marcus can do that or someone else more knowledgable.  My gut tells me that Justice Alito’s conclusion that this case is “a serious setback for freedom of expression in this country” is the correct way to view the outcome.   Although anti-discrimination laws and policies sound nice, they seem to be frequently used by politically correct leftists to stamp out dissent by religious groups and others on the right.   In short, they usually end up supporting leftist orthadoxy in the name of non-discrimination.

But the more troubling point about this case to me was no one on the Court seems to be making the argument that any funding for all these student groups is Constitutionally questionable because they get their funding by coercing all students to pay required fees.

Just as the left wants to prohibit speech in the form of campus speech codes (or campaign finance restrictions), they want to force speech in the form of requiring students to fund the activities of these highly activist, overwhelming leftist campus groups.  And because these groups use campus buildings and resources in addition to the variable expenses funded by the fees, the taxpayers are also coerced into supporting them.

Why should highly political extracurricular associations be allowed to rely on coercion to fund their activities? If students can afford to pay the mandatory fees that fund these groups, then they can certainly afford to fund groups they actually support on a volunteer basis.  Of course, what is happening here is political activists using coercion to free-ride off the larger group.

The state frequently uses (in fact, is defined by) coercive power.  Thus public education as a whole is based on coercion.  Though I would run education in a much different way, I can live with the state having an interest in education (though I can’t say I see much of an argument for state-supported professional education; students at Hastings will go on to have careers and average salaries far higher than the average Joe-taxpayer who pays for their education).  But the coerced funding of extracurricular groups — especially political groups — is beyond any reasonable use of state power and is a serious violation of freedom of speech.  Forcing people to support speech is as wrong as prohibiting speech.

Apparently this issue is settled law.  Someone should unsettle it.


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My Pileus colleague Marcus Cole argued a few weeks ago that conservatives and libertarians should not be so unhappy with Supreme Court Justice nominee Elena Kagan, since it could have been “much worse.” With a left-liberal Democrat in the White House and a Congress controlled by the Democrats, who knows, Marcus asked, what enormity we could have gotten.

I take his point, but with all due respect to my esteemed colleague, that is not exactly setting the bar high. There are, after all, indefinitely many worse choices for almost any office. It does not follow from that that the candidate before us is the best one, or even a good one—all that follows is that she is less bad than some others we might imagine.

It is true that, as many have lamented, we do not possess much direct evidence about what Kagan’s judicial philosophy would be. She has no experience as a judge, after all, and has very little by way of scholarly publications. Indeed, this has led some to ask whether she is even qualified to sit on the highest court in the land.

The confirmation hearings thus far have also revealed little. Some have suggested that her wiliness at not giving very much information in her answers intimates a duplicitousness in her character. Perhaps. It might also intimate a cleverness: She was, after all, a student of the Bork hearings—she said in 1997 that they were “great,” the “best thing that ever happened to constitutional democracy”—so she well knows how important it is not to give ammunition to the other side.

But there is some indirect evidence. She has served as Dean of Harvard Law School. One does not become dean of the law school at Harvard without possessing at least these three characteristics: one must be very smart, one must be very clever, and one must be very liberal. All three of those characteristics are overrepresented in academia, and the more prestigious an institution is, the more likely its members are to be (a) politically homogeneous and (b) clustered ever further leftward on the political spectrum.

I think it is safe to assume that Kagan has all three of those characteristics in spades. Her smarts got her foot in the door in the high echelons of academia, and her cleverness allowed her to climb the ladder quickly while managing to offend few. Given the rarefied political environment in which she has ascended, however, I think the reasonable assumption is that she will not have been able to succeed as she has unless she also shares political sensibilities that are significantly further left than where the center in the United States is.

While it is no doubt true, then, that there are yet more radical left-wing academics that President Obama might have chosen, I think it is a mistake to think that Kagan herself will not be quite liberal, and indeed one of the most liberal justices on the Supreme Court for the next several decades.


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Conservative and libertarian opposition to the appointment of Solicitor General and Supreme Court nominee Elena Kagan has been lackluster at best, and for good reason: President Obama’s choice to fill the seat of retiring Justice John Paul Stevens could be much worse. Indeed, there is some reason to believe that conservatives ought to breathe a collective (pun intended) sigh of relief.

Much of the opposition to General Kagan has been channeled to her treatment of military recruiters while Dean of Harvard Law School. In this regard, Kagan is completely without distinction among her peers. All AALS accredited law schools maintain an anti-discrimination policy that prohibits discrimination on the basis of, among other things, sexual orientation. Schools with such policies have refused to permit employers maintaining employment practices inconsistent with them to recruit on their campuses. The Justice Department, under President Bush, determined this to be a violation of the Solomon Amendment and threatened to remove all government funding from those institutions unwilling to abide by the law. Kagan, like many other law professors around the country, joined in a court challenge to the government’s interpretation.

That challenge suffered a unanimous 9-0 defeat in the Supreme Court, and forced Kagan, like all other law school deans across the nation, to choose between permitting military recruitment on campus or expose her university to the risk of losing millions of dollars in government funding.

The court challenge to the Solomon Amendment said much more about the state of American legal and higher education than it did about Kagan. It is difficult to refute the fact that large public research universities, like the rest of higher education in the United States, are within the capture and control of the left. As a 2005 study (McGinnes, Schwartz, and Tisdell) of political campaign contributions made by law professors has demonstrated, law faculties are overwhelmingly composed of and run by people with political sympathies similar to the ones held by the President and his nominee. The Justice Department’s interpretation of the Solomon Amendment forced university administrators, deans, and faculties to choose between two of the left’s most frequently articulated values, namely, nondiscrimination (over which they hold no demonstrable monopoly) and public funding of everything. When this choice between these values was put to them, we saw which one they held more sacred.

What does distinguish Kagan, however, is her track record as Dean at Harvard Law School, particularly with respect to the recruitment of conservative faculty. Contrary to popular understanding, law school deans do not hire faculty; law school faculties do. Nevertheless, few law school deans could (or would) boast of surpassing her efforts to introduce a sprinkling of conservative or libertarian scholars to the monolith of the left that is elite legal education. Some conservatives have argued that Kagan should not get credit for her efforts, since Jack Goldsmith, Adrian Vermuele, and John Manning could be hired anywhere. It is true that they should be hired anywhere, but is it really true that they would be?

I do not mean to imply that simply listening to an argument or two from the right qualifies one for the Supreme Court. It does, I think, distinguish General Kagan from many in the legal academy. It also suggests a measure of basic decency and a genuine interest in intellectual exchange that is becoming increasingly scarce. Would Kagan be the choice of a conservative or libertarian president? Of course not. The President is not likely to mimic the preferences of a conservative or libertarian. He is, however, a politician, and (in the wistful revisionist recollections of some at the University of Chicago) a legal academic. It is understandable that the President would admire someone evincing the qualities of both, and in this way, Elena Kagan permits him to replicate himself. Were the President to choose another from the legal academy, we could do far, far worse.

Examples? Don’t ask; I won’t tell.


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