What’s Wrong with the World

The men signed of the cross of Christ go gaily in the dark.


What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

A moment of good news: SCOTUS upholds the MCRI

I have little profound to say about this, especially since I haven't yet had time to read the opinions, but it appears that Anthony Kennedy's federalist persona was in the ascendancy the other day when SCOTUS ruled that the Michigan Civil Rights Initiative (passed by those "foolish masses" of democratic voters back in 2006) is indeed constitutional. That this should even have been in question gives one just a glimpse into the mad, mad world of what passes for constitutional jurisprudence in this country. See my discussion from two years ago of the "reasoning" that lay behind considering it unconstitutional.

I haven't had time to sort it all out, but here is a discussion (to be sure, a biased discussion, but still informative) of the "political process doctrine." Evidently Scalia and Thomas held that those earlier precedents enshrining the political process doctrine should be overturned. Naturally, Ginsberg and Sotomayer wanted the MCRI overturned on the basis of those same precedents.

A head-spinning irony (evident in the above explanatory article from Gawker) is that one of the earlier precedents (Hunter, 1969) involved a situation where state voters had made it harder for cities to pass racial non-discrimination laws. The Supreme Court held that this was unconstitutional. In the Hunter case what SCOTUS was trying to do was to promote the passage of laws against discrimination, whereas the minority in the MCRI case was using that same precedent to try to make it impossible for a state to put a real, even-handed, non-discrimination law into its state constitution. Say, what? Of course, we all know how this happens: It's all driven by results. SCOTUS in Hunter was against the voters because the voters were trying to block future city laws that, SCOTUS believed, would be good (if passed) for the mascot group they favored. In Schuette, the court minority is upset because the citizens of Michigan, by passing a real non-discrimination law at the state level, have banned affirmative action programs that, the court believes, will be good for the mascot groups they favor! So if anti-discrimination laws are expected to be good for the mascot group, it is "unconstitutional" to make it harder to pass them. If an anti-discrimination law at the state level is expected to be bad for the favored mascot group (by preventing reverse discrimination), then it is "unconstitutional" to pass it. Get that? Yeah, we get it. It's all about results. And this is legal reasoning? Well, apparently in Hunter and in Seattle (a 1982 case in which SCOTUS struck down an anti-busing ballot measure), that is indeed what passes for legal reasoning. Good for Scalia and Thomas for saying they should be overturned. Evidently others in the majority thought they could thread the needle, so I suppose technically they aren't overturned. But it's rather pleasant to listen to the weeping and wailing on the left, where this is definitely seen as a blow against their dubious political process doctrine.

In case you've read that the decision was 6-2 and notice that that adds up only to eight, Kagan recused herself.

By the way, little is being said about this in the news, but the MCRI also forbade affirmative action on the basis of gender. Since, if anything, gender discrimination (in favor of females) comes up even more often in higher education than affirmative action on the basis of race, I hope all those "diversity committed" public university administrators in the State of Michigan were awake and noticing this little victory for common sense.

Comments (18)

The liberals and the conservatives on the court are all hacks. I oppose judicial review precisely because there is no way to prevent the justices from doing whatever they want and making absurd arguments to justify their decisions. No free people should let 70+ year old lawyers with no understanding of issues outside their field make binding political decisions....the idea is repulsive. I suspect that the conservatives pushing the court to be more activist and strike down liberal laws (Richard Epstein, Randy Barnett, etc) will rediscover their love for judicial restraint if Hillary wins and gets to replace 2 or 3 conservative justice.

Cute use of "activist" Dunsany. As though Hunter, Seattle, Romer, and others that might have been thought relevant precedents to this case on the liberal side were not as activist as they come. It hardly is worth bothering to say this to you, because you know what I'm going to say already, but it is not activism to strike down bizarre precedents which themselves were legislating from the bench. It's returning us to the status quo ante before the court decided to rule that Mickey Mouse is President or whatever they dreamed up one fine day. Any liberal (including yourself) who knows anything at all about constitutional law must know and expect this response, but you nonetheless use the term "activist" sloppily for any decision that overturns a previous precedent or law that you happen to like. In this case, too, since this decision did _not_ strike down the earlier precedents (though Scalia and Thomas argued that it should) and also did _not_ strike down the Michigan law, you don't even have that excuse.

Lydia, liberals constantly use the word "activist" as though they never have actually engaged with or comprehended conservative arguments. In some cases they actually haven't, and in some cases they are being willfully obtuse. I have heard liberal law professors deploy this exceedingly silly trope--that by "activist" conservatives really just mean "striking down laws," which is obviously not true--and they really don't have any excuse.

What it comes down to is that liberals have guilty consciences about the fact that their "theory" of jurisprudence is nakedly illegitimate and unprincipled, and they are eager for this reason to pretend that conservatives hold to some version of it themselves. This is usually the role that accusations of hypocrisy serve for those on the left. When someone's only answer to an accusation of bad faith is that "everybody does it," it's an admission of guilt.

>. As though Hunter, Seattle, Romer, and others that might have been thought relevant precedents to this case on the liberal side were not as activist as they com

I think the conservatives were right in this case, and there is no question that the political process doctrine is absurd. As a matter of fact, I oppose affirmative action and have many "non PC" views on race. I was making a broader point about judicial review. The Right has its own insane theories , and it's not hard for an objective observer to see that the court has become a super legislature in all but name. Roberts' recent decision in Mccutcheon is a good example. In his opinion Roberts limited the definition of "Corruption" to quid pro quo corruption so that he could justify striking down limits on campaign contributions. Apparently it's only corruption if you pay for a specific vote and work out the terms with the person or party you are donating to. If Sheldon Adelson just happens to spend 100 million dollars on the GOP then that's not big deal. No corruption here, move along. A child could see how silly his reasoning is.

I haven't researched McCutcheon, but naturally I do not acknowledge that I have any "insane theories." Nor am I bound to agree with whatever procedeth from the pen of Justice Roberts, nor even from my own personal hero, Antonin Scalia, with whom I have disagreed from time to time. (To give but one example, I seem to recall that Scalia agreed not to strike down civil asset forfeiture as unconstitutional.)

I didn't say that all conservatives agree with the conservative justices, or even that the justices always agree. My point was that both sides of the legal "debate" embrace any theories that they think can be used to justify their preferred outcome. I might come across as a strong liberal to you because of my distaste for religion, but politically I am closer to someone like Stephen Harper or David Cameron than I am to Obama. I think my evaluation of this issue is fairly objective, and do not understand why either side pretends to think the justices are really deciding controversial cases based on "the law."

It depends on whom one includes in "each side." I think that Scalia and, if anything even more Thomas, have a pretty consistent jurisprudence, if not perfectly consistent. To the point that Scalia has angered his fellow conservatives by saying that he does not think that protection of the unborn is already included in the Constitution. But of course, by his view of his role, he does not regard his fellow conservatives as his constituency and doesn't regard himself as responsible to represent their ideas. In particular, he is adamant that the Constitution doesn't just say whatever we think it should say. I agree with him there. Which is not to say that I agree with every one of his results. So I just disagree with your "pox on both your houses" approach. It is always those on the court called "conservative" who are making decisions that can be seen _not_ to be driven by their own preferred results. The same is true of me as an amateur con-law geek, for whatever that is worth. That is why I sometimes run afoul of those who want to bring natural law into constitutional law, such as Hadley Arkes. Now _there's_ a theorist who really does want (and is pretty open that he wants) legal reasoning to be driven by desired "conservative" results.


Somewhat orthogonal to this post but relevant to Dunsany's comments, I thought this little analysis from Ponnuru was very interesting, since he considers himself an originalist:


I guess the key to whether you agree with Ramesh or not is your interpretation of the 14th Amendment. Certainly from a historical standpoint, Ramesh makes an excellent case that Congress didn't believe affirmative action was incompatible with the amendment. And like you and me, I'm quite sure Ramesh thinks affirmative action is bad policy -- he just thinks that the proper way to get rid of bad policies enacted into law (that don't run afoul of the Constitution or previous laws) is to pass new laws! In which case, the Civil Rights Act, for all its flaws, seems like an excellent line of attack against affirmative action.

I oppose judicial review precisely because there is no way to prevent the justices from doing whatever they want and making absurd arguments to justify their decisions.

Then you would appear to oppose the separation of powers and checks and balances. For judicial review seems to be implied in the constitutionally structured independent judiciary.

Now, I happen to agree that judicial review as currently practiced bears some problems, and I have proposed adjustments and alternative avenues. What I don't see is a way to get rid of it altogether without getting something even worse in its place.

why either side pretends to think the justices are really deciding controversial cases based on "the law."

Well, there is a kernel of truth in this. If you pull up any 10 cases decided in the federal appeals courts with the judges sitting en banc, you will tend to get at least 5 of them decided by a VERY split vote - often nearly evenly split. If you then examine the arguments in the opinion for and against the decision, you will find that the justices can't even persuade each other of the rightness of their position. On the tough nut cases, often even the justices that agree on a conclusion don't agree on how to get there. So it is inevitable that a person has plenty of ammunition to say "see, they aren't deciding the issues by law, but by preference."

But I also think that's a little bit glib. For one thing, you sometimes see this split decision outcome even in cases where the opposing judges are not pursuing a "preferred" result because they simply don't have any preference one way or another, where they have neither an ideological nor personal nor racial nor class nor social nor political iron in the fire. So, it is plausible that at least in some cases, the disagreements do not actually stem from ideology or preference, but from sheer disagreement on judicial construction.

Secondly, and more importantly, it is impossible for the decision NOT to finally land on the desk of (one or more) human beings, and ALL human beings are (a) fallible, (b) only sometimes logical, and (c) inclined to make out that THEIR reasoning is more rational than other parties. So, if it is a given that someone's determination has to be the final one, it is going to be in the hands of someone who is pushing a thesis that others won't agree with. And no matter how good his argument is, others are going to say "that's not a good argument." But the fact that there are others who disagree isn't what makes it a bad argument.

What I think is more telling, frankly, about the state of law and judicial work, is that civil servants who really don't have a decided point of view on what the law should have been, cannot figure out how to write regulations or apply the law in a way that they themselves would be confident carries out the intentions of the lawmakers. The damn laws are so complicated, and the judicial theories on how they are to be construed are so difficult to forecast in terms of results, that often there is simply no way for regulators to decide on the "right" course of action. I have sat in on meetings for writing regulations, and quite often the people in the meetings - all the top "subject matter experts" that can be gathered - are quite unable to find a way forward that follows the letter of the law, the intent of the law, rational common sense, and judicial rulings. So they spin their wheels taking years to hash out selections that are not really better than other choices so much as not clearly worse.

I would like to see judges stick to "simple" rulings, but I think that it would first take lawmakers to stick to simple laws: Murder is wrong, for example.

Oh, Jeff, I groan in spirit just thinking about reading that post by Ponnuru. It sounds _so_ confused. Hel-lo? Nobody here was saying that Affirmative Action is unconstitutional. And this _was_ a new law (in 2006)!!!!! It was a Michigan law. It was passed by the voters of Michigan according to what is, in Michigan, a normal process of making Michigan law. If Ponnuru thinks that this case was wrongly decided and that the MCRI was unconstitutional, he is out. to. lunch.

I am a Constitutional novice, but when Californians vote, in a similar manner, to define marriage as between a man and a woman, it gets destroyed in the courts. Aren't these two situations similar enough that the same conclusions should have been reached? They are, after all, both 14th Amendment questions, no? Opponents to Proposition 8 are preaching affirmative action for gays, sort of. Californians said, no, overwhelmingly, to that. Why does not this case law apply to the California case, as well?

The Chicken

Certainly from a historical standpoint, Ramesh makes an excellent case that Congress didn't believe affirmative action was incompatible with the amendment.

Jeff, I don't think this sentence actually says what you mean it to say. Nobody who visits writings of the Congress of the period where the 14th was passed remotely imagines "racial preferences in favor of minorities" were in any sense at all in their minds, much less that the 14th took a stand on the matter: they didn't consider the point.

For the Congress who wrote the first affirmative action laws, very few if any in favor of it considered "what did the 14th Amendment historically mean when it was originally passed" in terms of affirmative action. Mostly, they ignored the question. Of the ones (who were in favor of AA) who bothered to ask the question of what does the 14th mean about it, OF COURSE they didn't think "affirmative action was incompatible", but their thinking so was HARDLY likely to be based on any historical reading of the 14th, because it wouldn't have given any weight to the notion. But it is usually the case that Congressmen who write a law that is incompatible with the Constitution don't think it is incompatible with the Constitution - largely because they are unwilling to read and consider the actual meaning of the Constitution. After all (says they), either "it isn't their job to decide whether a law is constitutional (it's the Court's job)", or alternatively, "the Constitution means what we say it means" in which case now that we are passing this law, NOW the Constitution is compatible with the new law.

What Ponnuru actually says is somewhat more defensible:

The idea that the Constitution mandates colorblindness in government institutions, including government-funded universities, is attractive. But the constitutional text doesn't clearly command the courts to strike down race-conscious policies. Nor is there much historical evidence suggesting that the 14th Amendment was originally understood that way. The conservative justices who insist on colorblindness don't even try to make such a historical argument, which ought to bother them as originalists.

This is a more limited holding: the 14th (and the rest of the Constitution) doesn't require one definite stance on affirmative action - it is compatible with laws that allow it, and compatible with laws that forbid it - thus Michigan's law is compatible with the Constitution. For Ponnuru to say so, of course, requires deciding that the language in the amendment

nor deny to any person within its jurisdiction the equal protection of the laws.

does not refer to actions of government agencies that have the effect of conferring benefits. Such a reading is possible, of course, since benefits can be understood as standing apart from "protection" but the courts (including the SC) have for decades repudiated such a position - what with all the "equal outcomes" decisions. I seriously doubt that the debates around the 14th amendment at the time it was passed had ANY specific discussion of "equal outcomes" so of course court decisions that try to import that notion into the meaning of "equal protection" are doing some rather active work on content. Affirmative action is a POSITIVE policy stance: it means doing something actively about differences in citizens, so in order for those who passed the 14th to have written something that has any positive bearing on the matter at all, it would have to have been explicit. I defy our readers to produce something of the sort.

But it is certainly possible to read the 14th as originally intended to mean that "equal protection" did in fact imply "treat all citizens equally before the law" in all government actions. Is such a reading contra-historical? Well, the position is a NEGATIVE policy position: don't distinguish. It is sufficient for the language used at the time be IMPLICIT about the matter to mean that such a negative policy is contained in what was written. So, while I have sympathy for Ponnuru's thesis that the Constitution can be read to allow either policy, the two policies are NOT equal with regard to the language in the amendment or the language of the debates at the time.

Personally, I can stand the notion of affirmative action being permitted under the Constitution. I tend to doubt that permanent or long-standing affirmative action could possibly be good policy, and I also tend to think that laws that are based on temporary ills should ALWAYS have a sunset built into them, and usually a fairly early sunset at that, so that people don't grow up thinking that what is really optional BENEFITS conferred are something to which they are entitled. But until the courts get rid of ALL of their crazy construals of the 14th, they should have their feet held to the fire with regard to how affirmative action does not apply equal protection (as they read "protection").

Three quick points:

1) Lydia -- perhaps I didn't make myself clear (usually the case!) Ramesh agrees with you and with the Supreme Court: of course the MCRI is constitutional. He is just suggesting a couple of counter-intuitive ideas:

(a) that affirmative action is not prohibited by the 14th Amendment (apparently some conservatives seem to want this to be true) and

(b) even more interestingly, that the plain text (and meaning) of the Civil Rights Act seems to ban affirmative action!

2) Tony thanks for helping clear up my confusing comment; but I still think you read too much into the idea of "equal protection of the laws". Soon after the 14th Amendment was passed Congress passed legislation to specifically help the newly freed slaves. Such a law wouldn't help you if you were a Anglo farmer in Maine, but no one was worried that the Freedman's Bureau was in sudden violation of the 14th Amendment. I don't think that's the meaning of "equal protection of the laws." Instead, such a law, once passed, cannot be administered preferentially to newly freed slaves group X versus newly freed slaves group Y. At least that is my primitive understanding of "equal protection". Otherwise the government could never pass any laws that benefitted any individual more than any other individual -- and how can you prove that?

3) I think the Masked Chicken is on to something important...

Yeah, I did go and read the Ponnuru article. *He* could have been clearer, Jeff, so it's not really your fault. Thinking about it, I *think* he may be referring to other SCOTUS precedents (the names of which I don't have on the tip of my tongue) holding that affirmative action *at state universities* is contrary to the 14th amendment on the grounds that they are state actors. There we get into interesting con-law waters. They concern the application of the 14th amendment to state schools. If that is what Ponnuru is indeed alluding to, he seems to be recking without a couple of things: The case law precedents applying the incorporation doctrine and the 14th equal protection requirement to public, state education institutions are vast and wide-ranging. Does Ponnuru really want to say that public K-12 schools can be explicitly Christian schools and that this doesn't violate the establishment clause? I myself may think that is true, but it's considered quite a radical con-law stance and has been for decades. What about discrimination _against_ blacks? Would it be generally agreed that Michigan State University could have an explicitly anti-black admissions policy without violating the 14th amendment? (Though it would of course violate not only the MCRI but the 1964 civil rights act.) What about the 1st amendment and free speech and freedom of religion? Conservative and libertarian civil rights groups have opposed restrictive, PC speech codes at universities that accept public money by an application of the incorporation doctrine and the 1st amendment to universities. As I recall, a Christian getting a counseling degree recently won an important case against Eastern Michigan University on the grounds that they were a state actor trying to violate her freedom of religion by forcing her to give affirmative counseling to homosexuals as a condition of her degree. The point is that we got to this point of applying the 14th to racial discrimination by public universities by a series of case-law precedents that have a history behind them and that range over a much wider set of issues. If anything, even Robert Bork, as originalist as they come, agrees that the 14th amendment applies to official state racial discrimination policies. So at that point, if we agree with Bork, the only question is whether this applies to state colleges. So I don't agree with Ponnuru that this is a cut and dried matter.

But it's rather odd that Ponnuru should have brought that question up here anyway, because it wasn't as far as I know a point at issue in the MCRI case.


More good stuff, this time from Professor Epstein:


He references some of those "SCOTUS precedents" you refer to and thinks (like Ponnuru?) that they were wrongly decided because he takes the view that the "equal protection of the laws" clause doesn't mean individuals and institutions shouldn't be allowed to discriminate -- including, I assume, for religious reasons as well! I think your question about First Amendment issues is interesting, although even then if you didn't believe in the incorporation doctrine most state constitutions protect speech and religious practice similar to the U.S. Constitution, so I'm not sure how much practical impact it would have.

Again, I think what you find in Epstein and Ponnuru is the idea that the question of discrimination/affirmative action is a political question and should be decided by political bodies -- not the courts.

Isn't it a little strange that Epstein keeps using the phrase "private institutions"? Last I checked, only the 1964 Civil Rights Act (of all the things he is discussing) was about _private_ employers or educational institutions. Scalia's position concerns universities insofar as they may be regarded as state actors, and I cannot see that Epstein addresses any of the juisprudential questions there as to when or whether they should or should not be so regarded. For what it's worth, the MCRI itself is directed to Michigan state colleges and universities, not private employers.

As for the First Amendment, whether a federal or state copy-cat version, we must distinguish between such a clause and anti-discrimination legislation itself. The lawsuits I am discussing involve treating the colleges in question (such as Eastern Michigan University) as state actors and hence arguing that a constitutional right was violated. The same would be true if in reference to a state constitutional guarantee against _government_ intrusion into religion. It applies only to state actors. Statutory non-discrimination law may allow one to bring a suit alleging religious discrimination, but that was not the argument being made. Rather, the argument was that the guarantee of freedom of religion from state coercion was violated, because the college was a state actor. That argument becomes impossible to make if, merely in virtue of being a *university*, a state institution ceases to be a state actor.

Again, Epstein doesn't seem to address the way in which that type of issue applies to racial discrimination by a public university. It is in fact a fairly *conservative* and even arguably *originalist* interpretation of the 14th amendment to take it to forbid *state* discrimination on the basis of race.

I notice, too, that Epstein says he would have voted against the MCRI (though he thinks it is not unconstitutional) because he wants the schools to have more individual discretion as to whether to discriminate on the basis of race. Well, fine, that's what he thinks, but that is far from arguing only that "the question of discrimination/affirmative action is a political question and should be decided by political bodies." The MCRI, of course, _was_ decided by a political body (the Michigan referendum voters), but as a matter of policy, Epstein thinks it wrong. I am inclined to disagree with him. Given the mess we are already in with the 1964 Civil Rights Act and various state-level non-discrimination laws, the least the voters can do is give a little statutory pushback against some of the insanity of affirmative action. The legislative history of the MCRI made it clear that it was specifically directed against reverse discrimination, and I already know of many situations in which that has proven useful for people at lower levels of employment decision-making being pressured by the higher-ups to engage in affirmative action to be able to cite state law.

Professor McGrew,

Despite your repeated warnings to stay away from those other unorthodox law professors here at W4 law school, I ignored your advice at my own peril ;-)

Clearly, you highlight the key issue avoided by Epstein (and Ramesh): the difference and importance to constitutional questions when it comes to government racial/religious discrimination versus private racial/religious discrimination. I appreciate the clarification. I also agree that as a matter of public policy in 2014 the MCRI seemed like a very sensible solution to the problems of reverse discrimination.

I will see you in class again soon...

Post a comment

Bold Italic Underline Quote

Note: In order to limit duplicate comments, please submit a comment only once. A comment may take a few minutes to appear beneath the article.

Although this site does not actively hold comments for moderation, some comments are automatically held by the blog system. For best results, limit the number of links (including links in your signature line to your own website) to under 3 per comment as all comments with a large number of links will be automatically held. If your comment is held for any reason, please be patient and an author or administrator will approve it. Do not resubmit the same comment as subsequent submissions of the same comment will be held as well.