Fear and Loathing at SCOTUS

President Joe Biden, with Vice President Kamala Harris, greet Judge Ketanji Brown Jackson in the Blue Room of the White House, after officially nominating her to the Supreme Court, Friday, February 25, 2022. (Official White House Photo by Lawrence Jackson)

Impressive Mental Contortions

There is nothing complicated about the thinking of a liberal Supreme Court justice, submits Francis Menton in his Manhattan Contrarian:

Each of these dissents follows the same rote formula: the heart of the opinion is an appeal to fear and/or guilt, completely divorced from anything about the law. The basic argument is that because of either some looming menace, or your sins, or both, you must cede infinite power to your betters to run things outside the constitutional order.

Where’s the Law?

Somewhere in the thousands of statutes and precedents out there, or maybe just from our superior moral compass, we can find something to serve as a pretext to support our desired result. The desired result is always more power to the bureaucrats and/or liberal elites. QED.

It has been almost a week, and the dust is now settled after the 4^th of July (soggy in NE) and the end of affirmative action by SCOTUS. According to Oliver Wiseman in Spectator, polls show “a majority of Democrats opposed to using race as a factor in admissions.”

The party’s elite, however, is almost universally in favor of affirmative action — as hysterical reactions from the president and others made clear.

Last Friday, a day after the Supreme Court’s decision on affirmative action, Mr. Wiseman noted in Spectator the gap between the Democratic Party’s leaders and its voters on race-based admissions.

Polls find a majority of Democrats opposed to using race as a factor in admissions. The party’s elite, however, is almost universally in favor of affirmative action — as hysterical reactions from the president and others made clear.

Emotional denunciation remains the dominant tone, and elected officials willing to side with the majority of their party’s supporters are no easier to come by than they were last Friday.

For the left more generally, it has been a week of impressive mental contortions to avoid any awkward realities about the discrimination against millions of non-white Americans made possible by affirmative action.

NPR gets the gold medal for this news story suggesting Asian Americans are white supremacists. Or something.

Missing from the Democratic reaction to the Supreme Court decision is any suggestion that they see the bigger picture. Were the Democrats a genuine working-class party, they might use this decision to highlight the many ways in which America’s elite schools fall short of their meritocratic potential.

Die on This Hill?

Ruy Teixeira, an expert guide to the Democrats’ many blind spots, advises that affirmative action might not be “the hill Democrats should choose to die on,” reports Mr. Menton.

Rather than implicitly or explicitly pledging to resist the law of the land and promote racial preferences by any means necessary, they would be far wiser to use the decision as an opportunity to rebrand the party as the party of America’s working class — the entire working class.” Teixeira makes the political and practical case for class-based affirmative action as a substitute for race-based discrimination. The Financial Times’s Edward Luce calls the affirmative action debate a sideshow.

I’d argue that the institutionalized racial discrimination is something worth fighting against, but he’s right that there are many, many more pressing concerns when it comes to boosting the life chances of disadvantaged Americans.

Focusing on Judge Jackson’s dissent, Mr. Menton highlights its key appeal: GUILT.

The bulk of Justice Jackson’s opinion is occupied with lengthy recounting of statistics on such things as income, wealth, and health between and among races.

Judge Jackson Talks about Health

When tested, Black children have blood lead levels that are twice the rate of White children—“irreversible” contamination working irremediable harm on developing brains. Black (and Latino) children with heart conditions are more likely to die than their White counterparts. Race-linked mortality-rate disparity has also persisted, and is highest among infants. So, too, for adults: Black men are twice as likely to die from prostate cancer as White men and have lower 5-year cancer survival rates. . . . “Across the board, Black Americans experience the highest rates of obesity, hypertension, maternal mortality, infant mortality, stroke, and asthma.”

Regardless of VP Kamala Harris’s claim that Judge Jackson’s dissent is the “most brilliant ever,” how, Mr. Menton wants to know, is allowing UNC and/or Harvard (or other elite colleges) to engage in naked racial discrimination supposed to fix any of this stuff?

More from Judge Jackson:

For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.

“Whoa now, wait a minute,” advises the Manhattan Contrarian.

For that to be true, more than half the babies born to black women with white physicians would have to die. The footnote goes to an amicus brief of the Association of American Medical Colleges. Could all these people really be this innumerate? Justice Kagan — did you read this before signing your name to it?

At PowerLine, John Hinderaker links to Hans Badder at Liberty Unyielding statistics back to the original source. Here are the actual numbers:

 “99.6839% of black babies born with a black attending physician survived compared with 99.5549% of black babies born with white attending physicians.”

That would be a factor of 1.0013, rather than “more than double.” It is hard to believe that the 1.0013 is a statistically meaningful difference, Mr. Menton reminds readers.

If you are looking to think like a liberal Justice, Mr. Menton has suggestions:

• Just copy big pieces of amicus briefs from left-wing advocacy groups into your opinion, citing every kind of irrelevant data to appeal to guilt and/or fear, whichever seems to fit the situation.
• If it’s numbers, don’t bother to check the arithmetic, because nobody around here can do arithmetic anyway.
• Follow these simple rules, and you can be regarded by all the coolest people as a brilliant thinker, without ever having to do the hard work of having a single independent thought of your own.

Instead, continues Mr. Menton, if you want to think like a serious Supreme Court Justice, Mr. Menton recommends Justice Clarence Thomas’s writings. Start, he suggests, with Justice Thomas’s concurrence in SFFA v. Harvard.

Unfortunately, you will find that learning to think like Justice Thomas is much harder than just appealing to guilt and fear and following groupthink like the liberals do.