The chasm between law and anarchy

Ruth Marcus asks: “Will the Supreme Court add to campus turmoil?” That’s the title of her op-ed and also her concluding thought, which she addresses specifically to Justice Kennedy.

Consider this the latest example of liberal journalists trying to shame this or that justice into toeing the liberal line.

Marcus claims not to be “a fan of the current wave of college protests.” Yet, she isn’t above using the protests to influence the outcome of a legal proceeding before the Supreme Court. It seems to me that she’s calling for a mob veto over constitutional interpretation.

Marcus begins her piece this way:

Watching the racial ferment on campuses nationwide, and listening to the Supreme Court consider the charged topic of affirmative action, exposes the gulf — the chasm, really — between the difficult reality of race relations on campus and the out-of-touch, aggrieved perspective of the conservative justices.

Are the conservative Supreme Court justices really out-of-touch? There is no evidence that the American public has any sympathy for the “racial ferment on campuses nationwide.” There is no good evidence that it supports the way in which universities use race to admit black applicants over white applicants with vastly better credentials. When put to the test at the ballot box, the principle of colorblindness has routinely triumphed to the detriment of racial preferences in college admissions.

What is Marcus’s evidence that, on this issue, the conservative justices are out-of-touch with anything other than leftist ideology and the loudly expressed views of black students who, as a group, are admitted into colleges they couldn’t attend if decisions were based purely on merit? She notes that Chief Justice Roberts asked “what unique perspective. . .a minority student bring[s] to a physics class.” But Roberts was simply pointing out how out-of-touch with reality the premise of the ideology of diversity is.

Marcus also cites Justice Scalia’s questions about whether minority students with credentials that don’t match that of the student body would be better off competing with similarly-credentialed students at a less elite institution. Marcus doesn’t explain why this query is out-of-touch. In fact, it invokes careful research on the subject of “mismatch.” It’s about as “real world” as you can get on the topic.

Instead, Marcus sniffs that this is a judgment for university officials or the state legislature, not unelected judges, to make. But university officials and legislators aren’t permitted to engage in unlawful racial discrimination. And if the only thing that might save preferences from being unlawful discrimination is an alleged educational benefit, then it is fair to ask whether minority students are harmed or benefited by racial preferences of the magnitude used these days, and to put the burden of proof on those who would make admissions decisions based on skin color.

Marcus says that, though she’s not a fan of black lives matter style campus protests, they are based on a “sincere sense of hurt and alienation.” How does she know that this alienation isn’t the result, in significant part, of attending a college that’s a bad match?

In any event, the Supreme Court’s job is to be “in touch” with the law — in this case the Constitution — not with a particular group’s sense of alienation, whatever its cause. Often, there will be a divide between the law and people with grievances. When the conduct of those with grievances veers towards anarchy, the divide may become a chasm.

A judge who seeks to close the chasm by fudging the law, does our system of government great damage.


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