Monday, December 02, 2002
Expect some decisions in some relatively boring little cases tomorrow -- what some Justice or another used to call "peewee" cases, if I'm remembering correctly.
As you certainly know by now, the Term got a lot less peewee today with the grant of cert in the U. Mich affirmative action cases, as well as the sodomy case that might result in the effective overruling of Bowers v. Hardwick. (I say "effective overruling" rather than "flat-out overruling" because the arguments in this case are somewhat different to my understanding). The cert. grant in the sodomy case is either (a) great news, given the Sam Heldman theory that the quasi-liberal Justices are smart enough to vote for cert only if they're pretty sure they can put together a majority on the merits; or (b) a risky departure from this practice. (What's the risk, you ask? How could it be worse than it is now, from the point of view of those like myself who think that Bowers was an outrage? The answer is that a decision this year reaffirming Bowers could mean that it will be decades before this set of issues is revisited again, and Bowers will be harder then to overturn having been "repeatedly reaffirmed" -- and a strategic lets-wait-a-few-years-before-trying-to-overrule-it would then seem in hindsight to have been wiser litigation strategy.). You know what they say about hindsight, though; and I hope it's clear that I am not second-guessing the litigation strategy here, and have high hopes for the outcome in this case.
On the U. Mich. cases, you will in due course be treated to an expanded explanation of my theory of affirmative action in higher education, which is based on one core principle: if you've got a test or series of tests that tends to suggest that white folks are disproportionately "deserving of" or "suited to" a college education, then the test clearly isn't measuring what it ought to be measuring, because I take it as a basic truth that white folks in fact do not disproportionately deserve the good stuff that society has to offer; and correcting for that flaw in the testing system is commendable rather than invidious.
posted by sam 6:56 PM
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