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The SCOTUS majority that seemed to kill what was left of affirmative action today had a few goals: Explain to people who care about the law that this was a legitimate move Not throw the notion of precedent out the window Not upset institutions Showboat for their donors/basePermalink On twitter.com
Mood +1 🙂
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They seem to have succeeded only in the reassuring colleges and PR showboating, but in the process managed to blow up a bunch of foundational arguments they like to make about the law and hurt the court and the law substantially….for a result that changes little on the ground.Permalink On twitter.com
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For one, it’s not at all clear that the strawmen erected and pushed over in these opinions substantially alters the programs any party to the case had. In the opinion, CJ Roberts more or less writes what he think colleges should do here, and they echo it in statements. @steve_vladeck/1674425645475184642Permalink On twitter.com
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Indeed, the smart folks at these institutions already got the message, and the quota system that I suspect the people applauding this case as a big deal picture never meaningful existed in the first place. @AshaRangappa_/1674437450851049472Permalink On twitter.com
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The majority would have loved to have quietly hollowed out Grutter/Fisher and not have people seek explanations about why stare decisis and precedent don’t do any work for them here. But Thomas, eager to chalk this victory for his constituency, won’t quite let them. @MikeSacksEsq/1674420850160967682On twitter.com
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One of the more interesting things here is seeing Thomas’ opening line that this is an originalist outcome totally dismantled by dissenters with arguments using that same methodology. @jedshug/1674424009604366336Permalink On twitter.com
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The trouble with most sorts of originalism is that they’re falsifiable. And as they have before (though less forcefully), opponents point out that the originalism used on SCOTUS is often wildly wrong as a historical matter, and when exposed, it’s clear how outcome-driven it is.Permalink On twitter.com
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We’re now in a place where originalist arguments are being made by both advocates and dissenters, but it’s not clear how long right-wing activists will bother with them in the face of withering evidentiary attacks on the falsifiability of historical facts the method demands.Permalink On twitter.com
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And in a bizarre twist that makes it clear we’re witnessing legislating based on prudential factors and not lawyering based on precedent, history, and text, 3 military academies get a pass. @AnthonyMKreis/1674432376863363072Permalink On twitter.com