A Scalia Smear

The Supreme Court, earlier this week, heard arguments in a case of whether affirmative action should be allowed in Texas Law schools. You may have heard about this because the entire Left Wing exploded into outrage over Scalia’s alleged racism:

Demonstrating once again that his reputation for cheap demagoguery has been well-earned, Senator Harry Reid this morning took a wild shot at Justice Antonin Scalia. “It is deeply disturbing,” Reid suggested, “to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court.”

What did Scalia say, precisely?

“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, as opposed to having them go to a less­ advanced school, a slower-track school where they do well,” he said. “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas.”

That’s it. Scalia didn’t even advance the theory that admitting blacks to schools they are underqualified for only makes them struggle. He threw it out there as a discussion point to hear what the lawyers thought about it. You wouldn’t know this from the screaming headlines (the New York Daily News, which has completed its descent into pure Left Wing hysteria, had a screaming headline branding Scalia a racist).

Now there are reason to think that this theory is wrong. Recent studies have shown that black students admitted on affirmative action catch up quickly and have graduation rates similar to white students. However, others have argued that it keeps black students out of the more difficult subjects like science, where catching up is particularly difficult. This theory — not Scalia’s, but a common theory — is not far out of the mainstream at all. It’s been mentioned in prior SCOTUS decisions on this matter.

But this is a bit more dangerous than calling Scalia a racist. Alex Griswold

First of all, it’s worth noting that oral arguments are not an avenue for justices to share their views on the case at hand; it’s an opportunity to suss out any holes in the arguments of both parties. To that end, justices often advance arguments and theories they do not necessarily hold. Take for example Chief Justice John Roberts‘ extremely harsh questioning of government lawyers in NFIB v. Burwell, even though he eventually voted to uphold the individual mandate anyways.

Arguing before the Supreme Court is a notoriously nerve-wracking experience, since justices try to find arguments and lines of attack attorneys would never consider. In this case, the transcript make it clear that Scalia was asking a question about a theory put forward by others, not himself:

Scalia, in particular, has a tendency to play devil’s advocate. During the flag burning case, he asked if burning the flag could be banned by being considered fighting words. But he eventually decided with the majority to strike down the flag burning laws.

Charles Cooke, linked above, brings this home:

If we are to have a functioning justice system, we cannot hold lawyers personally responsible for the unpleasant parts of their designated roles. When a defense attorney successfully demonstrates that the prosecution’s case is too weak for a conviction, he is not betraying a preference for murder or rape or grievous bodily harm, he is ensuring that his client gets a fair shake. When a corporate counselor illustrates that a given statute is so badly written that it cannot be used to secure guilt, he is not endorsing whatever misconduct yielded the case in the first instance but upholding the rule of law. And when a Supreme Court justice pushes those before him to respond to the countervailing briefs — or offers whatever devil’s advocacy occurs to him on the spot — he is not pitching his own ideas but mediating a dispute. The day that we fail to understand this will be the day we give in to barbarism.

All too often these days we conflate principles with outcomes. Thus, to defend the free-speech rights of neo-Nazis is to be accused of endorsing their words. Thus, to protect the right to keep and bear arms is to be charged with complicity in its abuse. Thus, to oppose further government surveillance is to be lumped in with terrorists and hackers. During the 2013 Texas gubernatorial race, the Republican nominee offered the uncontroversial observation that, as attorney general, he was obliged to defend laws he personally opposed, and that this would have been the case during the 1960s, too. For this accurate appraisal of his professional responsibilities, his opponent labeled him a foe of interracial marriage. If this approach to government were to become quotidian, we would soon find ourselves living in a country ruled by men and not by law.

Raising points of law and discussion is Justice Scalia’s job. And … apparently … taking cheap shots at him is now the Democrat’s job.

Comments are closed.

  1. AlexInCT

    When I was in college getting my masters some 25 days ago, one of my good friends was a super smart black young guy with a heck of a can-do attitude. He confided in me that he was ostracized by the black community there for working hard and bucking the system the others were hoping would allow them a free ride to a system they were not qualified for. His advice that they could all do the same thing he did: work hard, not let anyone define their limits, and to actually earn respect, was waved off by people that told him they refused to “act white”. I surmise from people I have talked to that this has only gotten worse.

    Both Thomas Sowell and Walter Williams, successful black men, have researched and written extensively about this very topic, and I would not be surprised Scalia was actually quoting one of them (or both). But the left isn’t about anything but making themselves feel good, and there is no room for anyone to point out what they are doing is causing more harm than good. The Soviets had problem with their system, where it was never the fault of the stupid collectivist ideas that was the problem, but the fact man was not a perfect drone that followed along with the idiotic ideas, and we all saw how well that has served everyone that adopted the left’s beliefs.

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  2. Section8

    Great post Hal, look forward to seeing the flip flop within the next few weeks when taking half quotes to cuddle up to the left side aisle becomes fashionable for you again. Yawn.

    Alex, hope to see you and Rich post more on the main threads. Not that I agree with you both on everything, and I know you don’t agree with me on everything, but at least you guys are consistent in your beliefs whether it’s fair weather, partly cloudy, or stormy as hell.

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