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.