Tag: SCOTUS

Which woodwind would win?

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This session, SCOTUS is trying to figure out Sandra Day O’Connor’s best before date for ending affirmative action in college admissions.

In her Grutter v. Bollinger 2003 majority opinion O’Connor wrote:

“…race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

By next year, when the Court’s decisions in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina are rendered, it will have been 20 years. Close enough for government work.

Plaintiff – Students for Fair Admissions – accurately (according to the NYT) contends in its opening brief:

Harvard’s demerits of Asian-American applicant’s personalities are particularly scandalous and inexcusable. Harvard penalizes them because, according to its admissions office, they lack leadership and confidence and are less likable and kind.

Harvard, of course, does not exist to provide remediation, intellectual skepticism. or training in any of those personality categories. Harvard exists to make sure its endowments persevere. It’s easier for Harvard when everyone thinks the same way.

Here’s a slice from oral arguments on the Students for Fair Admissions’ suits. SCOTUS Chief Justice John Roberts presses Seth Waxman, the primary attorney defending Harvard.

CHIEF JUSTICE ROBERTS: — put aside the hypothetical about the African American applicant who’s a legacy. Take two African American applicants in the same category, however you want to take it. They both get or both can get a tip, right, based on their race.

And yet they may have entirely different views. Some of their views may contribute to diversity from the perspective of Asians or whites. Some of them may not. And yet it’s true that they’re eligible for the same increase in the opportunities for admission based solely on their skin color?

MR. WAXMAN: So the — the point is —

CHIEF JUSTICE ROBERTS: That was a question.

MR. WAXMAN: No, I know. I’m –I’m attempting to answer your question.

There is no doubt that for –as the testimony showed, that for applicants who are essentially so strong on multiple dimensions, so extraordinarily strong on multiple dimensions that they are sort of on the bubble, that they might –they have a real candidate for admission, African American –being African American or being Hispanic or in some instances being Asian American can provide one of many, many tips that will put you in.

CHIEF JUSTICE ROBERTS: Well, people say that, yes, but you will have to concede, if it provides one of many, that in some cases it will be determinative.

MR. WAXMAN: I do. I do concede that.

CHIEF JUSTICE ROBERTS: Okay. So we’re talking about race as a determining factor in admission to Harvard.

MR. WAXMAN: Race in some –for some highly qualified applicants can be the determinative factor, just as being the –you know, an oboe player in a year in which the Harvard-Radcliffe orchestra needs an oboe player will be the tip.

CHIEF JUSTICE ROBERTS: Yeah. We did not fight a Civil War about oboe players.

A friend to whom I sent that bit was amused. He commented:
“…at least bassoonists were not used as the example!”

This got me to thinking how Harvard admissions commissars would evaluate woodwind players. Assume equally qualified candidates of the same skin color, sexual orientation, and leftist political views… Only one can be admitted: Bassoonist or oboist? Which woodwind would win?

And what of other woodwinds? I had some thoughts:

First, let’s acknowledge that bassoon or oboe… Roberts is still an anti-woodwindist.

But, a more interesting question arises: Do you get more Harvard admission equity points for a bassoon or for an oboe?

How this could be decided might be partially based on whether the instrument could be used in a marching band – a musical ensemble associated with the military and inextricably bound up with the works of John Philip Sousa.

Sousa is a well known white male and suspected heterosexual, whose patriotism and contribution to martial music remains a threat to our democracy. ‘He’ never declared his preferred pronouns.

So. Oboes in a marching band? Apparently it is a thing.

But a bassoon in a marching band is practically unheard of.

Conclusion: Bassoonists get into Harvard. Oboists do not. But what about… Piccolos, for example? Guidance is needed.

We might take other lessons from this. Trombones, apparently up to 76 of them, seem the most obvious objectionable instruments for their domination of the marching band. Bass drums suffer from oppressive decibels, making them unsuitable for drum circles. These are excluded in this analysis because the Chief Justice has not commented on brasses or percussion.

I’ll suggest the most damaging admissions related woodwind is a piccolo, because they are featured in Sousa’s Stars and Stripes Forever, the National March of the jingoist (etc., etc.) United States.

Piccolos are not up to the 76 trombone pinnacle, but more than one piccolo is not unheard of.

Piccolos have been known to identify as flutes, and in some delusional cases, as bassoons. But, unlike Harvard’s Elizabeth Warren, they have neither high cheekbones nor a family mythology. Nor the compleat disingenuity.

Overall, while I think bassoonist applicants would get more points than piccoloists – for admission to Harvard the better choices might be harp or grand piano.

The broader question applies to all musical instruments, and there is surely a 6 figure diversity department salary for the person who can figure out how to score them on the diversity/inclusion/equity scale. The whole western canon of musical instruments must be analyzed.

Let’s start with this question: To what extent does the instrument feature in white supremacy? And “Are you triggered?” by Bach?

We need to have a “Which musical instrument are you?” quiz. Fortunately, they are all over the intertubes, we just need the Harvard Psych Department to “scientize” them.

In which SCOTUS agrees with FDR

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Today the Supreme Court ruled on compulsory government sector union fees, recognizing such fees as a First Amendment issue about compelled political speech. To summarize:

JANUS v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES

States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to sup- port the union before anything is taken from them. Accordingly, nei- ther an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

This opinion essentially agrees with that of famous Progressive Franklin Roosevelt:

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws enacted by their representatives in Congress. Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

There is no such thing as a “public-sector” union. There are government unions, of which the public is the employer, where bureaucrats “negotiate” among themselves, and a third party payer is stuck with the results.

When you name such unions “government unions”, it’s much easier to understand that government “management” and government “labor” have common goals and the employer doesn’t even have a seat at the table.

Copyright 2005-2019

Antonin Scalia RIP

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He will be sorely missed. He did leave us some advice:

It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.
United States v. Virginia (1996)

We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today’s opinion approves that process in principle, though urging the lower courts to be more restrained. This Court seems incapable of admitting that some matters – any matters – are none of its business.
Sosa v. Alvarez-Machain et al., 542 U. S. 692 (2004)

Now the Senate is looking for ‘moderate’ judges, ‘mainstream’ judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we’d like it to say?
Address to Chapman University students (2005).

His death heightens the danger to our Republic in an already dangerous time.

Our lame-duck President knows any appointment he makes should be blocked in the Republican Senate. This means he will make the most outrageous political selection he can imagine. He will rejoice in the spectacle of confirmation hearings in the midst of a presidential election. He will accuse the Senate of not doing its job. He will invoke a vast array of straw men calculated to promote division by race, class and sex. He may threaten some sort of bizarre Executive Order.

Nonetheless, if we are to have a Justice who will support overturning Citizen’s United and Heller – chipping away at the 1st and 2nd Amendments – let him at least be the appointee of a Sanders, Clinton or Trump.

Copyright 2005-2019

SCOTUScare

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King v. Burwell and the Law
by YUVAL LEVIN

Emphasis mine.

[Chief Justice Roberts] makes a much broader argument about the relationship between the vague, broadly stated aims and purposes of legislators and the role of judges interpreting the meaning of the particular laws those legislators then write…”

Obamacare is [to the Chief Justice] not so much a particular law as an overarching desire “to improve health insurance markets” and so if at all possible it should be taken to mean whatever one believes would be involved in doing so…

This understanding of the role of the judge threatens to undermine the rule of law in the American system of government, because it undermines the central place assigned to written law, and to the legislator, in that system… While it would seem to suggest that the will of the legislator should guide the system, in fact it means that the word of the legislator does not govern the other branches. It implies that Congress should have just passed a law that said “health insurance markets shall be improved,” and then left it to the executive agencies to decide how they wish to do that…

Roberts’s argument… suggests that when a law as written would be likely to have practical consequences at odds with the broadly asserted intent of its authors, judges should interpret it to have a meaning more likely to achieve that desired goal…

The health-care debate, in the context of which this case might originally have been understood, will continue because what Justice Roberts insists is impossible is true: Obamacare is a law that was intended to improve insurance markets but was designed in a way that will actually harm them. We can only hope that debate will ultimately be resolved in a way that also pushes back against the unexpected implications of this case and this decision by reasserting the supremacy of the law.

Read the whole thing.

The Chief Justice has twice approved the government takeover of one-sixth of the American economy. Now he’s concerned about disrupting “markets?” He expresses that concern by elevating “intent” above the rule of law?

Obamacare, passed using procedural chicanery, by a single party whose members hadn’t read it, was intended to dupe the American people. With John Roberts it succeeded beyond Jon Gruber’s wildest dreams. Gruber laughed about the “stupidity” of the American voter. He must be guffawing about John Roberts.

The “law,” whatever it turns out to be after the next executive order or SCOTUS interpretational creativity, should hereafter be known as SCOTUScare.

Copyright 2005-2019

They had good intentions

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That is how Chief Justice John Roberts justified Obamacare:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
-Chief Justice John Roberts, author of the SCOTUS decision in King v. Burwell

There are good reasons to believe this decision will neither improve health care markets, nor avoid destroying them. The majority decided this case based on their perception of the intent of Congress, despite compelling evidence to the contrary.

  1. The intent of Democrats in Congress – the only people who voted for it – cannot be known in this regard since they did not read the Bill.
  2. Jonathan Gruber, the main government architect of the law, says the intent was to fool the American people. And, specifically, by forcing the States to participate or lose the subsidies.
  3. Obamacare has utterly failed to improve insurance markets. It has made insurance companies rich, at great cost to the people.
  4. An argument advanced by those who passed the Bill is that Obamacare is intended to further the destruction of the “market,” so as to institute a government run single-payer system akin to that of Canada.

Justice Roberts, and his 5 comrades, have severely damaged the rule of law.

Copyright 2005-2019

Largest tax hike in world history

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The Obamacare health insurance mandate is unconstitutional according to SCOTUS:

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority:

But, says John Roberts, it’s OK if you think of it as a tax hike instead. So, SCOTUS just passed the biggest tax hike in all of time, in the middle of a severe economic downturn. Talk about judicial activism.

Whatever happened to paying heed to the intent of the legislators, who roundly denied the mandate was a tax, going so far as to eschew the word entirely in a 2,000 page bill?

Copyright 2005-2019

Unintended consequences

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Health Care and the Dynamics of Intervention

“We have a crisis! We have to do something!” Actually, what we have to do is undo a lot of things.

Every time I hear some dunderhead complain that the General Government needs to control “x” because otherwise it will cost the General Government too much to continue providing x — and especially x’s new extension, “y” — I think of all the reasons the Founders never intended the General Government to be involved in whatever “x” is in the first place. It’s why the powers are enumerated: You don’t get to grant yourself an interest in something so you can gradually take it over by complaining about the results of your own actions.

As it is, the General Government is free to cause the problem, and the “fix” is always to take more liberty from individuals. It’s 55mph speed limits, or “We won’t give you money for roads.” It’s our money in the first place. If we weren’t compelled to send it to them, they couldn’t extort us with it.

The Founders didn’t have to imagine all the ways in which these problems could be created, (they couldn’t have imagined the need for a 55mph speed limit, nor Obamacare) all they had to do was recognize the universal tendency of governments over the course of centuries. The Constitution is NOT a “living document.” Mostly, that holds because we’ve learned nothing about power and corruption. We keep electing the practitioners, and it’s our fault for not holding them to the contract of the Constitution.

Copyright 2005-2019