The coming liberal Supreme Court
As you probably know by now, the Supreme Court, in Schuette v. Coalition to Defend Affirmative Action, held that (1) affirmative action in college admissions is not required by the Constitution, and (2) a voter referendum is a constitutionally permissible way to set state affirmative action policy.
Sounds perfectly reasonable, right? The fact that it was a 6-2 decision may cause you not to be too worried about this. But had Elena Kagan not recused herself, she probably would have voted with the dissenters. So if only if two of the six majority judges were to be replaced by liberal judges, that would give the liberal side a 5-4 majority. Justices Scalia and Kennedy are both turning 80 in 2016. How much longer can they hold on if there’s another Democratic president ready to nominate more left-wing judges? Also, Justice Breyer, who is generally considered liberal but who voted with the majority, will turn 80 in 2018.
I think that eight more years of a Democrat in the White House could mean an activist liberal majority that will say that the Constitution requires affirmative action, and anything else liberals think should the law but that they can’t get past Congress. Liberal Supreme Court Justices have a track record of ignoring stare decisis when more “important” issues are at stake.
Lion of the Blogosphere 
I think we may get that liberal court before we have a new President. The liberal judges are liberal because they think ideology matters more than the constitution. I would imagine if a Republican Senate looks likely, one or more of the judges may decide to retire to make sure Obama will get the chance to nominate liberal judges with a Democratic controlled Senate before it’s too late.
Mike Street Station
April 23, 2014 at 11:18 AM
Lion, what is your position on affirmative action in the ivy league? Are you for elite private schools to mirror UCLA/Berkeley in demographics?
uatu
April 23, 2014 at 11:43 AM
It doesn’t seem likely that Democrats will win the next presidential election. Unless the economy improves significantly and we avoid another recession or crash. We’ve gone 6 years since the last recession and still haven’t recovered, it is not unlikely, historically, that we will have another one in the next 2 years before we have fully recovered which would be very damaging for Democrats.
XVO
April 23, 2014 at 11:47 AM
I don’t think the economy means as much as it used to. 2012 proved that. No one in recent times has been re-elected with the unemployment rate that we had then. It’s proof that a decisive amount of the electorate is being supported and is no longer worried about jobs and the economy since they are directly cut off from that effecting their lives.
So we’ve already reached the turning point on that. I don’t don’t think another Democratic administration will lose a national election because of the economy. Their constituents don’t care about the economy. That doesn’t mean that the Dems won’t lose elections in the future, I just think they have finally made the economy an irrelevant election topic for them.
Mike Street Station
April 23, 2014 at 3:26 PM
As long as Dems can keep subsidizing the poor and unemployed, you are correct. This is one of the under-remarked aspects of 2012. But at some point, presumably, this will break down. The US can currently borrow money for 10 years at less than 3% interest. What happens when that goes up to 6%? It will get harder for Dems to play Santa Claus.
Dave Pinsen
April 25, 2014 at 1:57 AM
This can go on forever because in a post-scarcity economy there is plenty to go around forever.
Lion of the Blogosphere
April 25, 2014 at 6:52 AM
Unlike Lion, I think a post scarcity economy is a fantasy, at least in our lifetimes. If it could go on forever, the logical think to do would be to get on the dole and not waste time working.
Interest rates are the real time bomb of our debt crisis; just ask the Greeks (paying 24% on their bonds). Under the conservative CBO Baseline interest on the debt exceeds defense costs in 2019. Of course, the CBO’s predictions on interest rates are no better than mine, that is to say, crappy. There are too many factors involved that goes in to interest rates. But I don’t see how we can avoid the inevitability of Treasury bond interest rates returning to the normal 4% to 6 % range. In fact, interest rates returning to these levels would instantly add 4.9 Trillion to our national debt.
Mike Street Station
April 25, 2014 at 8:56 AM
The Democrats will easily win in 2016. The Democrats start in knowing that they will win 242 electoral votes without spending any money on those states. Those are the states that have gone for the Democrats at least six elections in a row. In addition, states like Colorado and Virginia are probably now lost to the Republicans. The idea that any Republican can win in 2016 is laughable and everyone should probably get used to the idea that GW BUsh was the last Republican president.
superdestroyer
April 23, 2014 at 5:53 PM
the slow and steady march towards destroying rule of law.
A country without rule of law= 3rd world.
jjbees
April 23, 2014 at 11:57 AM
you’re exactly right. Seen this? YLS professor edited a new book about just that. Looks interesting:
http://www.amazon.com/The-American-Illness-Essays-Rule/dp/0300175213
Ryan_Clark
April 23, 2014 at 1:32 PM
America is very dynamic nation, but its large contingent of proles and low IQ minorities hampers its innate progressiveness and innovation abilities, providing more reasons for the ultra-elite to exploit and fleece whatever they can get, and kick everyone else to the curb, as a result.
JS
April 23, 2014 at 2:09 PM
It seems stare decisis only applies to conservative judges overturning liberal rulings, never the other way around. All it will take is 5 liberals to rule that “hate speech” is not protected by the first amendment, and that is the end of political freedom in America.
BehindTheLines
April 23, 2014 at 12:10 PM
I think the time has come to regard upheaval as inevitable and imminent. Something big is coming. Just needs a spark. Some minor food delivery failures maybe. That would be too easy to bring about to think it won’t happen.
Copperhead Joe
April 23, 2014 at 12:54 PM
Given the demographic changes, the best thing that can happen for “generic Americans” is for Congress/Supreme Court to pass laws to limit the power of government, so when the Brazilification occurs, the results will be minimal. It’s good they are taking steps to gut AA (how’s AA gonna work in a country that’s only 40% white?). If a republican congress can get in and repeal FATCA/cut IRS funding, the govt’s power to steal money to give to the underclass will be limited. Also need to reduce the country’s military power. The only freedom comes from a country to weak to mess with you. If the federal government is as powerful as a third world country, it won’t matter if the demos change. The only thing we have to fear is the American power in the hands of a third world populace.
Monroe Ficus
April 23, 2014 at 12:57 PM
Can you tell me what FATCA is? I look it up and all I get is stupid Stansberry advertisements.
Tina
April 24, 2014 at 11:56 PM
What I don’t understand today is the reasoning behind continued support for affirmative action. None of the reasoning behind it makes any sense, how is a nondiscriminatory policy like race blind admissions be discriminatory? What I’ve heard so far is that it is to redress past racial injustice towards African Americans, but this somehow seems to also apply to Hispanics as well? How is under representation (as with hispanics) in academia justification for affirmative action? It seems like, if you want to apply affirmative action in it’s current form, and to use it just for colleges; you would have to discriminate against whites and asians. A law or precedent would have to be put in place to allow racial discrimination in academia, and apply only for African Americans (not Africans from elsewhere or Hispanics?). In that same light, shouldn’t Asians also be exempt if the premise is to redress past racial wrongs? and namely only that Whites should be disadvantage under the new ‘holistic’ policy. This would logically continue until all of the respective population are represented proportionately according to their population.
Of course, the simplest way to achieve this desired outcome is to put quotas on everyone according to their population representation. If outcome is the only factor, this is the quickest way of achieving it.
Unless someone can convince me that any of the above makes any more sense than race-blind admission. I’m still at a complete lost to the whole reasoning behind it.
L
April 23, 2014 at 1:22 PM
That blacks and Hispanics underperform academically is seen as proof of continuing discrimination that needs to be redressed. And since the only way to counter that there is continuing discrimination is to bring up HBD, and because that is taboo…
Lion of the Blogosphere
April 23, 2014 at 1:40 PM
It’s worse than taboo, it’s evil.
everybodyhatesscott
April 23, 2014 at 1:46 PM
Most Hispanics in NYC attend prole schools, not Columbia or NYU, or even the real “prole” schools such as Fordham and Pace University, that attract many working class and high proles such as the Italian and the Irish groups. Besides City college or Hunter college, many Hispanics enroll in institutions such as Touro College, New York Institute of Technology or the John Jay School of Criminal Justice. Many Whites would never attend these places in the 1st place, and it’s not because of large Hispanic demographic, but because they don’t offer anything that might be of interest to them, such as varsity sports or religious affiliation.
JS
April 23, 2014 at 2:37 PM
That’s the problem in a nutshell. Any disparity is automatically assumed to be the result of discrimination. Any explanation other than discrimination is assumed to be racist. Yet the data shows conclusively that people of similar IQ earn similarly. The disparity arises because different populations have different averages.
destructure
April 23, 2014 at 6:10 PM
The reasoning for the past two decades or so isn’t past discrimination, it’s “diversity.”
Mike Street Station
April 23, 2014 at 3:20 PM
Convenient summation of the opposing view (in response to somebody posing pretty much exactly the same question as here, namely what’s wrong with meritocracy?) from some leftist who posted over at Sailer’s place recently:
“It is unhealthy for one racial group to hold all the political and economic power in a country. It is unhealthy for the excluded groups. And it is unhealthy for society overall, as such power arrangements are often unstable.
It is perfectly fair for all groups to have roughly proportional representation as part of their mutual social compact.”
It’s all about “group rights” (and grievances). To those people, individuals don’t matter.
Keyser Söze
April 23, 2014 at 4:09 PM
Actually the over-arching idea behind Leftism is to correct all the injustices that come from individuals not receiving the same gifts from god (or whatever). IOW to create the world that god would have done if he’d had the time and money to do it right. Just as they instituted handicapped parking spaces, they’d privilege NAMs even tho (actually because) they are less intelligent.
CamelCaseRob
April 23, 2014 at 5:50 PM
Your first statement is a good one and true. I think we need AA for dating and sexual matters, as unattractive men in society get the short end of the stick in the mating game.
JS
April 24, 2014 at 12:35 PM
And, after the communist revolution in Russia, “Free Love” was actually discussed as policy. The idea being that compensation should be made to men who for whatever reason couldn’t get sex from the most attractive females. Of course the idea was shot down (by women no doubt), but it is another example of the motive being to correct ALL injustices, not just economic ones.
CamelCaseRob
April 24, 2014 at 4:38 PM
Time for guns.
sestamibi
April 23, 2014 at 4:35 PM
Encourage the trends, bring it to a head soon, kick it in. The sooner the collapse, the easier it will be to recover lost ground. If we limp along for generations, we will all have become what the left wants us to be, with little hope of recapturing our past selves. Note: the Republicans are worse than useless in this struggle.
Daniel
April 23, 2014 at 6:00 PM
Very well said. Get it done NOW. Don’t limp along, turning weak.
Tina
April 25, 2014 at 12:03 AM
stare decisis and common law more generally are very gay.
jorge videla
April 23, 2014 at 6:47 PM
I doubt it, actually. They’ll have to nominate Hillary, who’s too closely identified with the left despite being a pawn of business, and will lose.
SFG
April 24, 2014 at 7:30 AM
You’re way off the mark on this, Lion. Affirmative action was never constitutionally required, and in all likelihood it never will be. Grutter v Bollinger only ruled that AA was constitutionally permissible, and even in the worst case scenario where Schuette v BAMN is overturned by a liberal court it would not entail that the government could compel public entities to practice AA. This isn’t T.H. White’s ‘Once and Future King’, in which everything is either required or forbidden.
Oxford Don
April 24, 2014 at 11:07 AM
I am not sure what you are disagreeing with, except possibly my prediction that Democratic presidents will appoint more Justices who think like Sonia Sotomayor and then the Supreme Court will suddenly discover that the Constitution requires affirmative action.
Lion of the Blogosphere
April 24, 2014 at 11:14 AM
That last conclusion is a non-sequitur, basically.
Oxford Don
April 24, 2014 at 11:48 AM
When SCOTUS consists of one token WASP, two Jews and six women of color and wise Latinas, it will all come down to a single two-pronged test: Who, Whom.
The Anti-Gnostic
April 24, 2014 at 11:29 AM
I am offended by your mention of Jews. There are conservative Jewish judges like Richard Posner who would never agree that the Constitution requires AA.
As far as their not being WASPs on the Court, blame Republicans for always appointing Catholics because they can’t find anti-abortion WASPs.
And before the 1990s, Jewish Supreme Court justices were extremely rare. Liberal decisions like Brown v Board of Ed were decided by a Court that was 89% gentile.
After Abe Fortas resigned in 1969, the Court was 100% gentile until Clinton appointed Ginsburg in 1993. That’s a 24 year stretch.
Lion of the Blogosphere
April 24, 2014 at 12:23 PM
If I mention Ruth Bader Ginsburg and Elena Kagan, are you still offended? This is like a black guy yelling hey, what about Clarence Thomas, one of three black strict constructionists in the entire country.
The Anti-Gnostic
April 25, 2014 at 9:29 AM
There are large numbers of conservative Jews. That you only focus on a few Jews you find obnoxious has more to do with your anti-Semitism.
Lion of the Blogosphere
April 25, 2014 at 9:38 AM
It is hard to envision even one real WASP being appointed to the Supreme Court in the next 10 years. For the Democrats this goes without saying; unless a short-haired no-makeup woman who attends a New York or DC rainbow-flagged Episcopal church counts. For the Republicans, the HYS-credentialed Federalist Society dudes in their 40s are 0% WASP — right-leaning WASPs with the ability to get into HYS migrated to banking and private equity 20 years ago.
suburban dad
April 24, 2014 at 1:18 PM
Back when this piece was being argued, CBS 60 Minutes ran a comically praising puff piece on Sotomayor.
In this puff piece, Sotomayor restated the opposition arguments (basically that citizens get the right to vote), and acknowledged that she was a beneficiary of affirmative action in college (and probably after college too, she was a mediocre appellate judge), and she worried whether she cost somebody more qualified a spot.
But, when the opinion came down, Sotomayor penned an angry dissent that she took the unusual step of reading from the bench. Optically, it looks like she took the attack on affirmative action personally.
The two Jewish judges split their votes. Kagan, interested in the issue as a former Dean, didn’t vote.
I don’t see this decision as either being particularly controversial or as being a rallying point for the left the way citizens United Was.
Rotten
April 24, 2014 at 1:48 PM
” Liberal Supreme Court Justices have a track record of ignoring stare decisis when more “important” issues are at stake.”
Well, as the former blogger at Southern Appeal said, “stare decisis is fo’ suckas”. Of course that means “republicans”.
Twentysixdotone
April 24, 2014 at 8:47 PM
It seems to me that justice Clarence Thomas, one of the most conservative justice SCOTUS has ever had, is really willing to ignore stare decisis to favour the consistency and hierarchy of the principles underlyng each decision. Perhaps even More than most liberal judges would be . ..
Bruno from paris
April 25, 2014 at 6:47 AM
In the interests of diversity the Democrats may consider it time to appoint an Asian to the Supreme Court. The risk would be that they will be pressured by their community to uphold bans on affirmative action:
“But recent moves by Democrats in California to reinstate preferences in higher education have met with a backlash. Writing in The American Magazine, Abigail Thernstrom notes that when a constitutional amendment was proposed that would have overturned Proposition 209, Asian-Americans rebelled and forced Assembly Speaker John A. Perez to table it. This is the first time Asian-Americans have broken with the Democratic Party over this issue.”
http://www.commercialappeal.com/news/2014/apr/18/mona-charen-time-bombs-in-the-democratic/?print=1
Julian
April 28, 2014 at 5:43 AM