Oral argument in Fisher v. University of Texas II was bound to be subject to enormous public scrutiny. Challenges to affirmative action, or “holistic” college admissions policies as UT calls it, raise strong feelings. There are problems with such policies from a legal perspective, that they are grounded in fuzzy words that defy clear definitions, lines and limits, leaving much to beliefs that can’t be nailed down.
Think of the sophomoric op-eds in student newspapers filled with sweeping cries of oppression, pain, privilege and trauma, designed to leave a reader with a sense of outrage and passion, but offering nothing that actually has concrete meaning. Courts try to give meaning in their rulings.
They don’t always succeed, but that’s a bug, not a feature. Affirmative action is replete with warm and fuzzy rhetoric, and few hard definitions, regardless of the fact that diversity provides benefits to all, and lack of diversity reflects an unacceptable detriment to some. How much diversity, how it’s determined, how far a college can go to help some at the expense of others, eludes easy definition. For believers, this isn’t a problem. For justices, it should be. They’re paid the big bucks to draw lines. Hopefully, they do their job this time, but I won’t hold my breath.
Yet, the explosion out of the Supreme Court came not from the justices’ inability to get clarity, but from Nino Scalia’s question to Gregory Garre, representing UT.
“There are those who contend that it does not benefit African-Americans to get them into the University of Texas, where they do not do well,” Scalia said, “as opposed to having them go to a less-advanced school … a slower-track school where they do well.”
The reaction was explosive: racism. First problem is that this was just a question, not an answer. Asking questions is a good way to get answers. Questions can be used as a set-up for the purpose of knocking down an argument. Questions provide the advocate with an opportunity to nail down his point, end the doubt by crushing it with reason and logic. Questions are what Supreme Court justices are supposed to ask. Asking a question does not necessarily mean that it reflects a justice’s thoughts. It’s just a question.
But then, this was a remarkably stupid question. And it was phrased in an insufferably stupid way.
As was pointed out by Michael McGough in the LA Times, the root of the question is the “mismatch” theory, argued to the Supremes by its leading proponent, Richard H. Sander, a UCLA law professor, in an amicus brief. The crux of the theory is that if students are put into schools that demand harder work than they’re ready for based on race, they will fail and suffer for the good intentions.
The theory has some superficial appeal. The problem is that it’s based on dubious assumptions, foremost of which is that absence of any causal connection. The Sanders amicus brief was ripped a new one in the amicus brief of “Empirical Scholars,” a needlessly pretentious name for academics proffering a solid argument that “mismatch” theory is fundamentally flawed. Its only flaw is that it requires some deep thinking to appreciate its message, and people really hate risking a headache over something that can be easily answered by their gut prejudicial assumptions.
And so, by asking a question, Justice Scalia became the official Supreme Court poster boy for racism.
Justice Antonin Scalia proposed that rather than place unprepared black students in a top state school “where they do not do well,” they should be sent “to a less-advanced school, a slower-track school where they do well.”
Well, not exactly. Scalia “proposed” nothing. He asked a question. Supreme Court justices do not engage in “negotiations” with advocates during oral argument, and to suggest otherwise is to misapprehend the nature of the process.
Justice Scalia and the other conservative justices may prefer to ignore the systemic effects of racism and segregation in America, but they do not disappear that easily.
Would it not be prudent to await a decision before discussing what they prefer? Then again, any decision that doesn’t support the holistic approach to race admissions will be ripped as racist no matter what rationale is offered. Why not beat the rush?
Does anyone really think Scalia’s question on the mismatch theory, not to mention his monumentally bad phrasing, reflects a neutral perspective, or better still, a set-up for Garre to knock down? Nah. Justice Clarence Thomas has made his disdain for affirmative action brutally clear, and pretty much everyone who pays attention thinks they were secretly holding hands behind the bench when Scalia made the noises for the Silent Clarence.
But the fact that a justice asked a question at oral argument, one that gives rise to offense for many people, and has led to cries of “racist” for having done so, is a problem. It’s simplistic to contend that merely asking a question reveals too much, or that public pressure and outcry should prevent a justice from asking a question that might cause public outrage.
Questions may reveal a justice’s state of mind, or not. Questions may include language or concepts that evoke widespread public condemnation, but if they raise legitimate if uncomfortable issues, they need to be asked. They should be asked.
So that means Scalia deserves a pass for his mismatch theory question? Not exactly. It was a stupid and needlessly provocative question. There are many problematic issues raised by Fisher, and there is a good chance the UT will lose because of severe problems with grounding its diversity claims in meaningful parameters.
But the mismatch theory isn’t one of them, and somebody like Nino should be smart enough to realize that raising a question as to this debunked theory at oral argument was inviting scorn and ridicule. It was not merely idiotic to raise, but it was raised so blatantly offensively as to dispel any claim that it didn’t reflect his mindset. Lawyers are expected to have the ability to use words surgically. Nino took a bludgeon to oral argument.
While this horrendous display of poor tradecraft by a Supreme Court justice has certainly caught the shitstorm it deserved, it should not be confused with the accusations it doesn’t. This is not proof that questions at oral argument are magically converted into justices’ beliefs. This should not stand for the proposition that controversial questions at oral argument are hereinafter the target of derision. Justices need, and we need them to need, the ability to raise questions and issues to the advocates, especially in highly controversial cases.
What we do not need is a nation of angry, offended people, leaping to conclusions about the significance of a question, or condemning a justice for asking it. But damn, Nino, your question was just totally horrible, ignorant and, well, racist, even if it was couched in terms of Sander’s bullshit mismatch theory.