Two Points on Affirmative Action

Yesterday was the big affirmative action argument at the Supreme Court, with Fisher v. University of Texas being argued for the second time. It's long been suspected that the case could bring about the end of race-based affirmative action in America, anywhere within the ambit of the Fourteenth Amendment's "state action doctrine" at least. Not surprisingly, the oral arguments were rather high-profile, and some remarks by Justice Scalia have become especially controversial. I just have a couple of points I'd like to make, both about Scalia's comments and about those of one of his colleagues.

First, concerning Scalia, a discussion of whose remarks and the theory behind them you can find here. He was, in a rather clumsy way, invoking so-called "mismatch" theory, the idea that affirmative action ends up putting black students in schools that are too advanced for them. A sophisticated version of this analysis might focus on the fact that, as a result of unequal policies at various lower levels of the American education system, black people are in general not prepared as well for the rigors of elite universities. Scalia, of course, did not make the sophisticated version; his remarks seemed rather to suggest that black people are actually just not as smart as white people, and will therefore be overwhelmed by going to white people schools. 

One thing to say about this is that it's not true, as the Vox explainer makes clear. Anothre thing to say about it is that it's racist. But I'd like to go a little further on that last point: in a lot of ways, Scalia's remarks, and to a certain extent the broader "mismatch theory" on which they're based, were channeling the basic logic of educational segregation. Of course, the actual logic of segregation was that it was bad for black people and that this was good because white people should be kept in a position of social supremacy over black people. But the avowed logic, the "it's good for everyone" logic, would have been a lot like this. Black people, for whatever reason, whether their innate talents or a legacy of admittedly unfortunate discrimination, just aren't prepared to compete with white people on an equal basis. It wouldn't be fair to them to push everyone into integrated schools. They need separate but equal.

This isn't to say that Scalia favors segregation (though honestly, who among us really doubts that if Scalia had been around in 1954 he would've been condemning Brown v. Board of Education as a lawless judicial usurpation?). It's just to say that some of the logic and rhetoric behind the anti-affirmative action movement can very plausibly be seen as a slightly watered-down version of the arguments against racial integration in the first place.

My other comment concerns an offhanded remark from the Chief Justice. The supposed benefit of affirmative action, since just improving the status of the African-American community is apparently not good enough, is diversity, and specifically the idea that diversity on campus will be good for everyone. (Obviously, affirmative action is only okay if it benefits white people.) One of the ways in which the state of Texas was arguing that the diversity fostered by affirmative action was good for everyone was about the dynamic within individual classrooms. John Roberts was skeptical of this idea, and at one point asked the lawyer for the state, "What unique perspective does a minority student bring to a physics class?"

Mr. Chief Justice, may I humbly submit that a minority student brings to a physics class the perspective that black and Hispanic people are also, y'know, people, and might actually be smart, or have something to say about physics? A "perspective" that is too often lacking? Along with its close cousin, the "perspective" that women are also people and might actually be smart or have something to say about physics; lord knows that one's been all too absent from the classroom for ages. I've never had the opportunity to experience it directly, but my sister has, and my impression is that that feeling of being not welcome does an awful lot to discourage everyone other than white men from even trying to participate, or pursue a career in these fields. That probably has an awful lot to do with why the historically black colleges are so much better at producing black scientists. They are, to use the cliched term, a "safe space" for black people to pursue science. And unfortunately, an awful lot of science classrooms just aren't safe, in that way, because there are just so goddamn few black people or Hispanics or women or whatever already there.

You might think that, in something like math or physics, there would be no such thing as the "black perspective" or the "female perspective." You might especially think that if you really didn't have much sense of how to empathize with the plight of the oppressed. And in a way, you would be right. But it's a funny thing about science: insight can come from anyone. Even if there's no "black perspective" or "female perspective," an individual black person or woman might turn out to have an insight that could change the world, or at least be kind of interesting. And if the world is set up in such a way that they're all strongly discouraged from even bothering to try to contribute, that insight might be buried forever. Sort of like how there isn't a black way to hit a baseball, but Jackie Robinson was still damn good at it. And so was Josh Gibson, it's just that he never got the benefit of someone willing to say, hey, maybe we should give these guys a chance.

Another Inevitable Result of the Great Inversion

So one thing that's making the rounds today is a poll showing an ever-increasing number of people saying they wouldn't like it if their child married someone of the opposite political party. This of course shows how terrible Americans are, how acrimonious our partisan divides, how tribal our politics, etc. Because you see, in 1960, 4% of Democrats and 5% of Republicans said this. In 2008 it was 20% of Democrats and 27% of Republicans. Now it's 33% of Democrats and a whopping 49% of Republicans. People are becoming that much more ideologically intolerant, I guess.

Or not. We don't know how ideologically intolerant people were in 1960. Not from this survey data at least. Because, as I detailed in my previous post, back in 1960 party identification correlated only weakly with ideology. More to the point, there was a considerable amount of ideological overlap between the two parties. A Democrat and a Republican from Massachusetts had an awful lot more in common with each other than that Democrat would have with a Democrat from South Carolina. Indeed, it's quite likely that, at least if you go back a little further, the Massachusetts Democrat would have had more in common with the South Carolina Republican than with his southern co-partisan.

So if you had the strong feeling that you didn't want your son or daughter marrying someone whose ideology you found hateful, it just wouldn't make a lot of sense therefore to decide you didn't want them marrying someone of the opposite party. You would presumably want to be discriminating among cross-partisans, just as you would need to be discriminating among co-partisans. These days, though, if someone puts an R after their name it gives me a pretty good idea of what they're all about, or at least what they're willing to tolerate. So whether you like the practice or not, it just plain makes a lot more sense to disfavor members of the opposite party, for your children or for yourself.

Donald Trump is the Inevitable Result of the Great Inversion's Completion

The latest CNN poll shows Donald Trump, Ben Carson, and Ted Cruz as the three medalists (right now) in the Republican nomination. That's two not-actual-politicians who've spent years cultivating support among the right-wing fringes of society, plus one actual Senator practically every member of whose own party hates his guts. The three of them together are getting 66% of the primary vote right now. That's two-thirds of Republican voters, planning right now to vote for one of the three craziest candidates in the race. If Marco Rubio were to consolidate the Christie, Bush, Fiorina, Kasich, and Paul supporters, he'd be at a whopping 25%. There's a real inmates-running-the-asylum feeling here. And I know why.

The big story of American political history, well, since the Civil War at least, is what I like to call the Great Inversion. In 1890, there were two political parties, each consisting of a sharply-drawn and entirely coherent faction. One party represented the northeast and the Pacific coast; the other was for the most part based in the South. You'll note that every word of those two sentences would be the same if I replaced the year with 2015. The only difference, of course, is which was the Democrats and which the Republicans. During the interim the two parties switched places, Democrats shifting from the party of John C. Calhoun to that of Barack Obama, while the Republicans went from the party of Lincoln to the party of, well... evidently Donald Trump. And all through the middle of that time period, things were messy.

Giving Constitutional Argument a Bad Name

So apparently Erwin Chemerinsky goes around maintaining that the text and history of the Constitution don't suggest that a woman can be President. This is called giving constitutional argument a bad name. This outrages me so that I thought I'd just give a quick run-down of different ways to approach this problem from various modal angles.