JAY SEKULOW

The ACLJ has a radio show. Heard it while barrelling through eastern PA yesterday, at around 12 noon. Didn't catch the station it was on, but from their official list, I see that their reach is pretty broad. But I found it pretty astounding to listen to a show devoted mostly to appellate courts; cool for me since I'm interested in this stuff, but also disconcerting since the arguments are skewed in a conservative direction. Yesterday they were having a "signature drive" for a petition to pressure Senate Democrats to stop filibustering judicial nominees.

Do liberal pressure groups have radio shows? If not, why not, and when are they going to get them? Seems to me that the ACLU should get on the ball here, for example.

LAWRENCE ROCKS

Kennedy's Lawrence opinion is inspiring. The humane and civilized glance beyond our national borders, the sensible attack on the errors of analysis in Bowers, and the full discussion (and acknowledgement) of the harm that sodomy laws have done. . .

This case is going to be a heck of a lot more fun to teach than Bowers.

I agree with Atrios and Jack Balkin that this is a victory for civil rights. I also think that no one should have any illusions that there will not be fierce opposition from religious conservatives on this one. Anyone who thinks that this ruling will simply transform the public discourse is probably too optimistic: think of the fact that the anti-abortion movement really only gained steam after Roe.

In fact, I just got out of the car after driving through Eastern Pennsylvania, and due to my trip and Blogger's screwiness, I'm just finishing up this post that I started this morning. The airwaves in the verdant hills of eastern PA were filled with stories about how the court is acquiescing in the "homosexual agenda" of "destroying marriage." One commentator from the Alliance for Marriage or something like that likened the fight to WWII: this folks are viewing the case (along with the expected Massachusetts ruling and the Ontario high court decision) as an attack on traditional values that the "American people" are just waking up to. Of course, on the one hand, the American people have been fed anti-family propoganda for a long time and need to be schooled by folks like these critics of Lawrence, and on the other hand the "American people" already support these groups overwhelmingly, to hear them tell it.

Pretty amazing stuff.

I hope that the more that such folks are actually forced to articulate a position, the more they will sound like cranks.

NOT THE FAMILY RESEARCH COUNCIL

These folks would have a fit if they saw this. (Turn it up loud. Link via the "Daily Dish")

FLEISCHER AND "STATE MATTERS"

Transcript's up. Here's the passage:

Q And on the Texas sodomy case, does the President believe that gay men have the legal right to have sexual relations in the privacy of their own home?

MR. FLEISCHER: I think on this decision, the administration did not file a brief in this case, unlike in the Michigan case. And this is now a state matter.

Q So he has no position on this?

MR. FLEISCHER: It's just as I indicated, the administration did not file a brief on this -- as, I think, you know.

Again, if I wanted to be interpretively stingy, I could claim that Fleischer is "obviously ignorant of constitutional law" and should be "taken to task" for this, "severely," because he apparently seems to think that states can resist the Court, or at least because he is speaking -- "pandering," even!! -- to his religiously conservative constituency and -- wink! wink! -- telling him that he's on their side.

But that would be more than a little unfair.

ON THE MALLEABILITY OF MEMORY

Billmon on Bill Frist, who once thought that Iraqi WMDs were the main reason wage war in Iraq, but now doesn't.

Possibility #1: he's just reconstructing his memory based on present needs. Possible.

Possibility #2: he's actually describing what he knew about the reasons for invading Iraq in the first place, and his statements about WMD's were alarmist and manipulative. Possible, but makes me like Bill Frist even less than I do now.

Happily, #1 is easily remedied in an electronic age. #2, well, is a more serious thing.

MORE: Or not, as Josh Marshall reports. Fantastic.

FLEISCHER DUCKS ON LAWRENCE v. TEXAS

Transcript's not up yet, but according to the video tape, in reaction to a question on Lawrence v. Texas, Ari Fleischer said that the administration "did not file a brief" in the case and "this is now a state matter."

THIS IS NOW A STATE MATTER? What is Ari Fleischer saying: that states can overturn Supreme Court rulings? How dare he even imply that the Supreme Court's decisions could be overturned by states. How could this be a "state matter" -- this is clearly an oblique reference to "states' rights" -- since the Court has now, by a 6 to 3 vote, struck down a state law as unconstitutional?

Think I'm reading too much into this statement? If so, good. I almost titled this post "Fleischer encourages state resistance of Supreme Court," or "Fleischer rips up Cooper v. Aaron," but thought that would be irresponsible.

For the record, I like the result in the case. See the helpful comments by Professor Lawrence Solum at Legal Theory Blog. See also Josh's thoughtful comments at Oxblog.

And if you're puzzled at the context for this comment see my posts on Gephardt here, here, and here.

MORE: Transcript's up. See my post above.

HEY BRETT

Thanks for setting me up on your blog, old buddy. Just thought I'd send you a few things that I find funny today.

List of people paying tribute to me. ["Not Mweiner" blew the link. It's here. -- BEM]

Ignatz, also paying tribute.

The newly redesigned "Weiner Hulk." Cool.

SK Bubba's taking heat for me. I like that.

BTW, Blogger's "profile" page is screwy today, so I can't figure out how to sign my name to this post. It shows up as "Not," but in reality it's "Not Mweiner," so your liberal anti-american readers know where to send the hate mail. And I'm beginning to think that you should ditch Blogger, Brett. You did lose a chunk of that brilliant post (WHOA NELLY) on why President Bush can just thumb his nose at the Supreme Court whenever he wants to. But I thought you were supposed to be a "liberal". . .

[A note to the careless reader: If you have any doubt what this is about, first of all: it's parody (and not very good parody, at that), and secondly it's also about corporate bullying by a man who deserves to be boycotted. --BEM]

WHOA, NELLY!! OR, WHEN AND WHY BUSH SHOULD "OVERCOME" A BAD RULING BY THE COURT!

Eugene Volokh wants to school Dick Gephardt on the duty of presidential deference to judicial views of the Constitution. Here is part of his post.

Do we really want a President who thinks that the President has the power to overcome "any wrong thing the Supreme Court does" using an Executive order? I know lots of people think various actions of the Bush Administration are unconstitutional; I too disagree with some of the Administration's positions, for instance on the alleged power to detain all unlawful combatants (including U.S. citizens captured on U.S. soil) with no judicial review. I hope the Supreme Court agrees, and decides against the Administration. But I'm pretty confident that if the Supreme Court does so decide, this Administration will comply with the Supreme Court's order.

Gephardt and Kucinich are promising that they'll flout those orders. Seems to me that they should be taken to task for this, and severely.

Sounds good, right? President Bush wouldn't defy the Court, would he? And no one would actually defend such an action, would they?

Not so fast. First, we would need to imagine some more detail about the hypothetical case and the hypothetical ruling to understand what options President Bush might have if he wanted to reasonably claim that he was using executive orders to "overcome" the bad thing that the Supreme Court would have done, in his hypothetical view. No such detail is provided here. It's hard to think about these kinds of cases in the abstract. In an actual situation, however, smart pols and ambitious, young lawyers in the White House could probably be counted on to think of an appropriate reaction that "overcame" the decision in an actual case challenging the President on national security.

But, secondly, it probably never will. Plaintiffs in terrorism-related cases (where the Executive branch invokes national security concerns) are having a hell of a time trying to get their cases up to, let alone past, the circuit courts. The Supreme Court is not going to hear a challenge to the 4th Circuit's rulings in the Hamdi litigation, for example. The reasons why are partly political, to be sure. Even if the judicial "liberals" on the Court wanted to take these cases -- and they might not -- they'd probably have to reckon with the unlikelihood of the success of their preferred positions. In addition, and more fundamentally, courts generally defer to the executive during wartime. Steel Seizure (the Court challenging Truman on the seizure of steel mills during the Korean War) and Merryman (the attempt by Taney to challenge the detention of John Merryman during the Civil War) are the exceptions, not the rule. Think of Dennis, Korematsu, Quirin, etc. (and read, generally, Sanford Levinson's essay "What is the Constitution's Role During Wartime," here).

It's worth remembering why Steel Seizure and Merryman are the exception, not the rule. In Merryman, the executive branch simply ignored the Court. And the Court has to know the following: if President Bush is serious about the dire consequences to national security that could result from, say, lawyer-induced silence on the part of terrorist suspects, then he would be remiss if he simply complied with a hypothetical Supreme Court ruling directing him to provide the suspect with a lawyer. Perhaps the President could even direct the suspect to be shipped off to Guantanamo, to "overcome" the harm that the Court would have (hypothetically) wrought -- again, this option depends partly on the particularities of the actual case, to be sure. Even so, thinking through the damages to the Court that could result from such (arguably justified) Presidential resistance, politically smart Supreme Court Justices are not going to put the President in that situation. And they don't have to acknowledge this chain of prudential reasoning in public: they can simply speak of some version of "deference to the judgment of the executive," as the 4th Circuit did in Hamdi, even though in Hamdi all the executive did was hand the court a piece of paper and tell them that somebody named Mobbs was telling the truth about Hamdi being an "enemy combatant." End of story for Hamdi, probably.

Moreover, even if the SC went wild and attempted to challenge the President by commanding him to do something that he claims would irretrievably damage national security, the President shouldn't be impressed with "parchment barriers" from precedent (Cooper v. Aaron, say) that seem to establish judicial supremacy. He should resist. If he's serious that national security would be damaged if he followed the Court's ruling, then he would be negligent in his duty if he allowed that damage to happen just because nine (or five?) folks in robes told him to. The Court can't do anything about it aside from throw paper at him. Maybe they could talk to the Chicago Tribune as well, for example, but that's hardly a policy that could compel the President to follow the ruling. In such a situation, he would ultimately have to appeal to the public and to Congress and prepare for a defense in an impeachment trial in the Senate.

In such a situation, we'd hear a lot of bold rhetoric about the "rule of law" and a lot of attempts to establish judicial supremacy as a principle higher than national security. A lot of this rhetoric would come from Democrats. And on the other side of the aisle, someone, inevitably, would defend a departmentalist view of constitutional interpretation. Republicans would re-discover their "liberal court"-bashing rhetoric, and they'd find interpretations that would bolster the President's cause: in the Federalist -- perhaps in Madison's statements about the ineffectiveness of "parchment barriers," and in his statements about the independence of the executive; they'd give Marbury a working over, and note the relatively weak textual foundations for judicial supremacy; they'd read more about Lincoln's defiance of the Court and his other questionable actions -- thus allowing them to reclaim the title of "Party of Lincoln"; they'd probably call Stuart Buck to give this kind of testimony. Maybe they'd even call political scientists to testify, although I doubt it. George Will would wax poetic about the President's sacred duty to protect the nation. Rush Limbaugh would whip up his followers with harangues on something like the "real role of judicial review," on how the Court had overstepped its bounds, and on how the framers -- properly understood -- didn't intend the executive branch to defer to the judicial in questions of national security.

(Maybe I should take a few months off and actually write this novel!)

In the narrowest sense, all of this just goes to show that Volokh's hypothetical doesn't take him as far as he would like. Presidents have much wider political and constitutional lattitude in areas of national security than (perhaps) I would like, but it's easy as pie to spin out a scenario in which the President would seek to "overcome" a bad Supreme Court ruling.

I don't want to be unfair here, but it seems to me that the real issue here for Volokh isn't the actual set of limitations on Presidential power, but a) the fact that Gephardt was talking about affirmative action, something Volokh opposes (and I'm not so sure on), and b) the fact Gephardt was talking to the Rainbow/PUSH folks and can thus be accused of pandering to a liberal and minority audience, as he quotes Instapundit as claiming. But those are much more subtle questions than whether or not Gephardt's claim was "ridiculous" or evidence of a deficient understanding of the constitutional limits on Presidential power, "constitutional illiteracy," or any of the other simplistic things I've read in the blogosphere on this subject. Framed as a discussion of whether or not Presidents can attempt to "overcome" Supreme Court decisions that they strongly disagree with, the answer has to be yes. And we should want Presidents who are willing to do so, albeit judiciously and not recklessly. Whether this would be the case with all imaginable executive challenges to affirmative action per executive order, my answer would be no, but if the President disagrees and is willing to pay the political price, let him or her go ahead and do it. The sky is not going to fall.

In a later post, Volokh limited his attack on Gephardt's claim to the following:

if Gephardt really does take the view that Supreme Court decisions about state laws should be reversible simply by the President issuing an Executive Order, that's fine

I don't think this is a fair representation of what Gephardt said, however. And as the quote above indicates, Volokh's original attack is much broader.

MORE: See also the Curmudgeonly Clerk's post, here, with some helpful links!

MORE: Steven disagrees with me (and probably thinks I'm a little crazy; his post is thoughtful and worth a look!), and the Clerk thinks I'm on to something.

ON THE "LIGHTER SIDE"

Rittenhouse has obviously never worn these. . .

From http://www.instepshoestore.com/docmarten/docsandals.htm. Very comfortable. And they make me taller. I like that.

PRESIDENTIAL CONSTITUTIONAL INTERPRETATION II

Jim Joyner says a little more about his grudging acceptance of judicial supremacy. Similar to Eugene Volokh, both Jim and Steven at Poliblog also take Dick Gephardt to task for claiming that he could counter an anti-affirmative action ruling when he probably couldn't. I repeat my point: the fact that opponents of Gephardt can't figure out how he could issue an executive order to counter Grutter if it had gone the other way means absolutely nothing.

I'll admit, if the opinion countering Grutter read in its entirety as follows:

Government can't use race for any purposes; the "colorblind constitution" is the correct interpretation. Thus say we, the Supremes.

then Gephardt would have a difficult task (except that he could probably prove that the majority had fallen off its collective rocker and should be impeached). But that's an abstraction. In Court opinions as we know them, there are always ambiguities, interstices, and opportunities for further political contestation.

But I think that Gephardt's statement point to a larger issue, and it's that issue that I'm really interested in. Back when he signed the BCRA, President Bush flatly stated that he thought the law was unconstitutional, but he signed it anyway, with no ceremony. . .and then flew off to a Republican BBQ fundraiser. This act on the part of President Bush was politically smart, maybe, but should be troubling. On March 22, 2002, the Washington Times editorialized as follows:

[I]t is downright inexcusable that President Bush, residing in a White House that is overflowing with political capital, cannot muster the courage to veto a bill he genuinely believes is unconstitutional. The president will be violating what he has personally conveyed are his convictions about the First Amendment when he signs into law, as he has said he will, the blatant attack on free speech that Shays-Meehan represents.

And in an editorial titled "Bush's Cynical Act," from March 28, 2002, the Herald-Sun (Durham, NC) also criticized Bush, as follows:

Bush's refusal to veto the bill, knowing all the while it is fodder for the courts, is a cynical and disappointing act.

What was disappointing about Bush's act, I would submit, is that he did not act on his own professed views of the constitutionality of the bill before him. I say this even though I like BCRA. On the other hand, Bush did indicate that he thought that "constitutionality" was something for the courts to figure out. The division of labor implied by that implicit claim may be popularly accepted but it is nonetheless unfortunate.

So I agree with Gephardt on principle: Presidents should act on their own considered notions of what is constitutional. If anyone is interested in these topics, they should read some of the growing literature in law and political science on departmentalist theories of interpretation. Keith Whittington and Mark Tushnet are good people to start with. And let me plug my favorite Con Law casebook, Brest, Levinson, Balkin and Amar: Processes of Constitutional Decisionmaking, which -- among other things -- starts out by challenging students to take departmentalism seriously.

MORE: Note also Jeff Cooper's posts here and here. For reasons that should be clear, I think that Prof. Cooper isn't generous enough in his interpretation. See also Steven Taylor's response, which, as I note in his comments, evidences quite an astounding lack of constitutional imagination, given his earlier defenses of constitutional sleights of hand with respect to executive agreements.

MORE: See the post by Stuart Buck, here, defending presidential constitutional interpretation. (Via Jeff Cooper) Anyone who is interested in a fuller articulation of the view that there is such a thing as "independent executive review," see Michael Stokes Paulsen, "The Most Dangerous Branch: Executive Power to Say What the Law Is," 83 Geo. L.J. 217. See also Keith Whittington, "Extrajudicial Constitutional Interpretation: Three Objections and Responses," 80 N.C.L. Rev. 773.

I thought that the "blogosphere" was supposed to be a place where people engage in creative thinking. Why, then, do lefty law-thinking types practically roll over and die if the slightest whiff of a challenge to judicial interpretive supremacy is advanced? Come on! Gephardt was saying something eminently defensible, but so far only Stuart Buck (!!!) has bothered to even try to defend him. Jack Balkin comes the closest with this statement:

If all he meant was that he would try to migitate the effect of Supreme Court decisions he does not like through various executive orders, (which can sometimes be done constitutionally, especially if the decision in question is statutory or a construction of administrative regulations rather than based on an interpretation of the Constitution) he expressed himself very badly indeed and should work harder at being more precise and not misleading his audience.

Jeff Cooper thinks that the comment is so bad that he says the following:

if Gephardt says something similar in the future, then I'll be willing to consider calling for his withdrawal from the race.

Professor Cooper is too willing to give up the ship here, in my view. What is so threatening about Gephardt's claim that it merits even thinking about calling for his withdrawal from the race? That a President might disagree with the Supreme Court on a matter of constitutional interpretation, and then use executive orders to express his own view of the constitutionality of the issue at hand? For my part, I'd love to see a President who had the integrity to refuse to defer to the Supreme Court's policy-based decisions, rather than Presidents who practice the cynical avoidance of constitutional confrontations (as Bush did with BCRA).

There should be no secret by now, I would hope, from either left or right, that the Supreme Court is setting affirmative action policy, abortion policy, educational policy, and so on. Sure, they advance arguments that are persuasive to a lot of people with respect to the broad universe of arguments that can be labelled "constitutional." But sometimes reasonable people can claim that they get it wrong on matters of the constitution, and sometimes they just get it wrong on matters of policy.

Just a mere two years ago supporters of Gore were tearing their hair out claiming that the Court had make a political decision in an election -- and some (like Bruce Ackerman) were claiming that in order to frustrate the Justices' apparent desire to "pick their own successors," Democratic Senators should flat-out refuse to allow any Bush Supreme Court nominee to sit on the Supreme Court should there be a retirement. I don't know how else you could describe such a view as "Senators using their legislative powers to overcome a wrong thing that the Supreme Court did." But when a candidate hints in the direction of asserting a similar power in the Presidency -- a power that, pace facile comparisons between "a republic" and a "dictatorship" and un-thoughtful references to the text of the Constitution, can be defended both theoretically and as a matter of (admittedly limited) historical practice -- that candidate should be praised, not left to the wolves. Come on, folks!!

CURMUDGEON DEATH MATCH

The Curmudgeonly Clerk punctures the hot air of my optimism balloon, here. Appropriately enough, he/she/it is responding to my post below, entitled "Curmudgeonly thoughts on Grutter v. Bollinger". Here's the passage:

The reasoning process that undergirds Marston's optimism, however, is simply incredible. Couldn't the very same rationale be advanced in favor of overruling Roe v. Wade, deconstitutionalizing the abortion issue, and leaving the matter to public debate? Will Marston be similarly consoled by this facet of the decision if Lawrence v. Texas upholds Bowers and/or the state's sodomy law?

It seems to me that the sort of silver lining that Marston perceives in Grutter is probably one that is visible solely to those who are, more or less, comfortable with the decision's ultimate outcome. Or am I being too curmudgeonly?

Spot on, in one sense. The very same rationale could be advanced if the Court upheld Bowers and overturned Roe, and I would advance it. This doesn't mean that I would be happy with all aspects of the result of these hypothetical rulings -- life is, after all, a mixed bag. But the major lesson over the past few Supreme Court terms has to be that courts can do good, but the (atypical) Warren Court taught liberals to expect too much from the courts in general.

Affirmative action is a great issue because it shows that as much as conservatives rail against judicial tyranny, they, too, want to win the judicial constitutional interpretation lottery when it comes right down to it, and they, too, have a primarily results-based approach to constitutional law. Even though partisans are no doubt often sincere in the vehemence with which they articulate their constitutional objections to affirmative action, as far as I can see it, the constitutional arguments concerning affirmative action lean in the direction of allowing the practice; reasonable people can look at text, original intent, and precedent and certainly disagree with that assessment, however. And on my first pass through the recording of oral argument, I am struck by how often affirmative action opponents whip out their constitutional claims whenever the policy questioning gets tough. It's hard not to see the constitutional arguments as primarily shutting down dialogue here. Dialogue doesn't solve all problems by any means, but in this case we should be happy if we have more of it.

On the policy side, the question is closer, I think. It's no surprise that the "original intent" of the Reconstruction Amendments is downplayed in all of the opinions in Grutter and that even the disputes on the Court seem to hinge on whether or not affirmative action is really a good policy, all things considered. Somewhat obliquely, I noted my own policy-based objections in my post below. To my mind, the strongest objection to affirmative action is squarely political: it divides disadvantaged constituencies, who should in fact unite in favor of redistributionist policies.

But I shouldn't duck the real question that the Clerk implies, which is, I take it: "under what conditions should people be happy with an unfavorable result in the courts?" I don't have a principled answer to that question, I'll admit. But in Employment Division v. Smith, for example, Galen and Black went back to the state legislature and got an exemption for their religious use of peyote. And after Bowers (in response to the Clerk, should I say " even after Bowers?"), gay rights activists have been pursuing a multifaceted strategy that does not rely on litigation alone. Winning in the Courts is not everything; those who don't like decisions should take solace in that fact, and those who do win should also take heed -- as the history of anti-abortion activism after Roe shows.

MORE: my grad school colleague Willem Maas writes in with this quote from Gerald Rosenberg's excellent book, The Hollow Hope:

"one result of litigation to produce significant social reform is to strengthen the opponents of such change." Citing civil rights and abortion cases, Rosenberg writes: "While I have found no evidence that court decisions mobilize supporters of significant social reform, the data suggest that they may mobilize opponents." (342)

ON PRESIDENTIAL CONSTITUTIONAL INTERPRETATION

Haven't thought about this a lot yet, but let me just applaud Dick Gephardt for being a good defender of presidential constitutional interpretation (even though Steven didn't mean to highlight that aspect of his comments). There's too much deference to the Court out there, and too few assertions of interpretive authority by the other branches of government. Instapundit's attempts to go after this one by comparing it to Trent Lott's praise of Strom Thurmond's racist presidential bid are silly. Running on a segregationist platform is wrong. Presidential challenges of Supreme Court authority are in a different ballpark, and are defensible on many reasonable views of constitutional interpretative authority.

Seems to me that when Gephardt said that executive orders could be used to counter what he considers Supreme Court errors, perhaps he had something in mind like the continual wrangling over executive support for overseas organizations that provide abortion, something that I've never heard a lot of complaints about from those who like restrictions on abortion. I know that restrictions on oversees abortion providers don't directly counter Roe, but they certainly fall into the class of presidential actions described by Gephardt; just because folks critical of Gephardt can't think of a policy that would fit his comments with respect to affirmative action doesn't mean that there aren't any potential orders that he could plausibly defend as countering a hypothetical anti-affirmative action ruling. Politics is partly about finding creative solutions to policy problems, after all.

Jim Joyner would agree with me, although for slightly different reasons, I think.

CURMUDGEONLY THOUGHTS ON GRUTTER v. BOLLINGER

The Constitution allows the use of race as one factor in admissions decisions, as long as there is individualized determination (and, apparently, so long as the program does not "unduly harm nonminority applicants"). This seems fine to me as a matter of constitutional interpretation. It's always been one of the cruellest ironies in American constitutional history that the reconstruction amendments never really protected African-Americans and are now being used to attack what defenders of affirmative action often defend as attempts to remedy the lingering effects of decades of state-sponsored racial subordination. I realize that according to the narrow terms of the case, the issue here is not the use of affirmative action to remedy discrimination -- but this is partly because the Court has set high hurdles for those who would attempt to prove discrimination (much higher standards of evidence than the Chief Justice applies to his own use of statistics in dissent in Grutter, for whatever that's worth). Even though for broad jurisprudential reasons the "remedial" argument doesn't fly right now and U of M didn't defend its programs in those terms, it's certainly a popular justification for such programs in general.

But I will admit that I am troubled by a few things in the opinion. First, Justice O'Connor seems all too willing to defer to the judgment of what she calls "major American businesses" and "the military" and their estimations of good public policy. Those of us who are interested in resisting the corporatization of the university should be skeptical of a Court that takes "major American businesses" at their word when they prefer any policy, especially if the Court seems to be deferring to their judgment about educational policy. And there is already too much deference to the military going on right now in American society. They should be under civilian control, not the other way around. In other words, even if you like the way such arguments cut right now, you might not like the result the next time around.

In addition, these sentences from O'Connor's opinion make me really uncomfortable:

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.

Here the Court is trying to foster legitimate rule by appealing to a principle of merit in the selection of access to higher education. The visual metaphors here are quite stunning when you think about them: what is necessary is the appearance of openness and integrity. Again, whatever you think about the policy, affirmative action is not a purely merit-based system; in fact, it is in the critique of the supposedly objective concept of merit that defenders of affirmative action have some of their strongest arguments, it seems to me. Plus, I must confess: my students (mostly white, many of them from economically disadvantaged backgrounds) are not going to be convinced by these arguments, even if not all of them will work up the courage to say this to me. Everyone knows (or should know) that standardized test scores can essentially be bought. One of the reason why affirmative action is controversial is because the lack of a social safety net in the U.S. more or less forces those in lower income brackets to be nervous about their life prospects and protective of advantages that they have, however those advantages are obtained. And as far as candidates for disadvantage go, there is no reason I can think of to claim that poor folks living in the de-industrializing northeast (for example) are not also worthy of consideration. Perhaps this is one reason why Orlando Patterson argues in this weekend's NYT that poor whites should be phased in to affirmative action programs. Given that "major American businesses" are unlikely to accept a program that is premised on the idea that the market systematically disadvantages some people, however, I wonder about the political viability of such an inclusion.

And how can O'Connor and those who joined her opinion claim the authority to dictate a 25-year time limit on affirmative action programs?

At the very least, however, this decision does allow for a broader political discussion of whether or not affirmative action is good public policy, a discussion that would not be possible if the Court simply invalidated such programs. If opponents of affirmative action want to prevail, they will now have to appeal to voters rather than rely on the judgment of a majority of the Justices on the Supreme Court. And defenders of such programs will have ample opportunity to answer those charges, something that most certainly would not have happened if the decision went the other way. Strikes me as a good thing, all things considered.

JAN ZAHRADIL, THE EU'S ROBERT YATES

From the Prague Post:

Before the fireworks could be launched to celebrate membership, government representatives to the constitutional convention in Brussels were loudly complaining of their treatment by larger EU nations, in particular Germany and France.

One representative, Civic Democratic (ODS) Deputy Chairman Jan Zahradil stormed out of the June 12 meeting that finalized the constitution draft.

"We were intimidated and mocked like dwarfs," said Social Democratic (CSSD) representative Jan Kohout.

Sound familiar?

(Enigmatic, I know, but I'm in dissertating mode right now and thus a little short of excess brain capacity.)