The New York Times Weighs In

The Times's editorial on the school cases (called, in what has to be gross overstatement, "Resegregation Now") speaks to the tension between negative and positive rights I highlighted earlier. Clearly, the editors of our paper of record are positive rights folks.

"The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate."

This opening sentence begs the question that the Court had to decide in these latest school cases: does Brown require integration or mere desegregation?

The editorial calls the opinion "radical" and labels it "activist."

This claim of activism is especially interesting. While it is true that the Court did rule that local governments lack the power to determine admissions by counting by race, Brown did the exact same thing.

Even more ironically, the editorial cannot seem to agree on the meaning of activism. At one point, it reads "This decision is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do."

At another, "It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated."

Put aside the obvious misstatement that the Court ordered schools to become more segregated. That's pure nonsense; however, it is true that this decision could lead to less integration in schools located in neighborhoods dominated by one race. The important issue raised by these two statements is why it is "activist" to forbid schools to count by race but not activist for a court to compel a school to do so.

Whether you agree or disagree with the school cases, it is impossible to hold up this editorial as an example of clarity of thought and reason.

Don't get your thoughts on the Supreme Court from the New York Times editorial page. I am no legal genuis, but the task of dismantling this doesn't require much more than middle school civics and a casual perusing of chapter 1 of "The Idiot's Guide to Logic."

Form your own opinions. People are all too willing to form them for you, and you can tell how well qualified they are.

London Terror Plot

Note to terrorists: if you try to bomb Picadilly Circus, you are going down.

My Thoughts on the Seattle & Louisville Cases

Here goes nothing.

This case hinges on a debate that has endured in legal philosophy for centuries: are rights positive or negative? In other words, are freedoms to be considered as freedoms from something or as freedoms to something? Negative rights are freedoms from government action. Positive rights are freedoms to have to government act on the right-holder's behalf.

The Chief Justice's opinion for the Court (which is a majority in some respects and a plurality in others) and Justice Kennedy's concurrence in judgment both take a fundamentally negative view of the rights arising under the Equal Protection Clause: individuals are given the freedom, under the Equal Protection Clause, to be free from having the government classify them on the basis of their race. The Chief Justice makes this point abundantly clear: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In this paradigm, segregation is a positive governmental action and each citizen is and should be free from such positive acts. We are all free from "de jure" segregation- active segregation by law.

Again, Chief Justice Roberts:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons.

To be clear, Justice Kennedy writes his own opinion to argue that citizens are only free of racial classifications to the extent that the government making the classification can show that there is a compelling interest in making it and that there is no way to achieve that interest without counting by race. He leaves the door open to allowing state action to remedy "de facto" segregation, which is segregation in fact. De facto segregation (which the majority may call a contradiction in terms) arises from housing patterns: races live near each other and therefore neighborhood schools reflect the narrow racial mixture of the neighborhood not the racial mixture of the city. Justice Kennedy's position is that there may be some positive right relating to segregation, even de facto segregation, but it is very hard to find an interest compelling enough, and a law tailored narrowly enough, to justify the exercise of that right.

The dissents' position embraces positive rights. They view the right in Brown v. Board of Education as a positive right: the right to attend an integrated school. This perspective aims farther than the negative rights view because it requires that the courts enforce laws that create positive integration, not merely the absence of segregation. Consider this excerpt from Justice Breyer's dissent:

In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality--not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

The verbs in this passage show the emphasis on positive rights: challenge, change, make, work, and seek.

Justice Thomas's concurring opinion challenges this positive rights approach:

Regardless of what JUSTICE BREYER's goals might be, this Court does not sit to "create a society that includes all Americans" or to solve the problems of "troubled inner city schooling." Ibid. We are not social engineers.

The negative rights crowd aims at color-blindness (per Justice Thomas); the positive rights crowd would allow local governments to use "race-conscious criteria" to further the interest of integration as long as those criteria do not involve "invidious discrimination."

In this case, Justice Kennedy charted a middle course between negative and positive rights. His opinion requires schools to start with a negative rights approach and only allows them to proceed to positive integration (i.e., directly counting by race) if the race-neutral means fail to achieve the compelling interest. He denies that color-blindness is a workable constitutional principle, though he clearly prefers it to counting by race.

I think that Justice Kennedy's approach, while it is a huge mess, will have the effect of forcing states into embracing the negative rights approaches. Before a school board can start counting by race, it will have to show that it exhausted the race-neutral alternatives. Practically, I don't think that school boards will be willing to create fully individualized interview processes addressing each student's skills and needs or pay for building schools so that they naturally draw from diverse neighborhoods. Without taking these steps, I don't think that a board will be able to satisfy Justice Kennedy's requirements, and his opinion is the law.

So what do you think? Is there a right to integration? Is it the job of the Supreme Court to say that the way to end racial discrimination is to stop discriminating by race? Is it the job of judges to determine which forms of discrimination are invidious and which are benign? Which side followed Brown?

Really good commentary is now available at scotusblog and bench memos.

School Cases are In

Find them here, consolidated into one opinion (with concurrences and dissents, it runs 185 pages).

In short, the schools in these cases failed to carry their heavy burden of showing that their race-based plans were narrowly tailored to meet a compelling governmental interest; therefore, the plans were struck down.

I (obviously) haven't read the full opinions yet, but I expect that the effect of Justice Kennedy's concurrence, limiting this case to the narrow tailoring aspects, prevent this case from being "the big one" that some people expected.

However, here are some passages from the opinions that may make it broader than it presently appears. From Justice Kennedy's concurrence:

A sense of stigma may already become the fate of those
separated out by circumstances beyond their immediate
control. But to this the replication must be: Even so,
measures other than differential treatment based on racial
typing of individuals first must be exhausted.

We'll have to see. I'll pass along the thoughts of the really smart people at scotusblog or volokh when I can.

Today is the End of the Term

There are 4 opinions due to be announced today (3 if the two school cases only yield one opinion). When I can gather my thoughts about them, I'll have something up. I am also working on a review of the term as a whole, although I seriously doubt my ability to evaluate such a weighty topic in a manner worth reading.

Well, lack of ability has never stopped me before. What I lack in ability I make up for with enthusiasm!

Piper Book Sale

For you Piperians out there, DesiringGod.org is selling all of its books for $5 TODAY ONLY. If you order today, the book is $5.

Quantities aren't limited. Check it out.

Samford Athletics News

Samford football made the news! This is huge because Samford is not really all that good at football.

And, I should point out, that the only reason that Samford football is in the news is that a defensive end robbed a bank and got arrested.

**sound of papers shuffling**

Nevertheless, Go Dogs! Samford Bulldogs forever!

A Quote Challenge

Kudos to whoever can identify the person who said "Beer: the cause of, and solution to, all of life's problems."

Thoughts on Tomorrow's School Cases

Let me quote in full this post from scotusblog. As someone who appreciates that the business of lawyers is and must be doctrinal before political, I heartily agree. Thank you, Professor Fried.

Here is a prediction: the Court in its school race-based assignment cases will take a bite of Grutter, just as in Wisconsin RLF it took a bite out of McConnell. And the usual suspects –e.g. The New York Times editorial page—will once again point to what they will call the false fealty to stare decisis sworn by Chief Justice Roberts and Justice Alito. Such accusations will be either ignorant or hypocritical. Grutter was paired with Gratz, which struck down the Michigan undergraduate plan of racial preferences because it was mechanical and numerical rather than individualized and sensitive as in Grutter. Those who are addicted to racial preferences celebrated Grutter and ignored Gratz, no doubt encouraged by the elevated rhetoric in Grutter. But this Term’s school cases are more like Gratz than they are like Grutter. Truth be told, Grutter was more like Gratz too, only the Court chose to ignore the clear findings of fact that Michigan Law School was just as addicted to numbers and percentages as the undergraduate program, but due to the smaller number of applicants (and better legal advice) could accomplish its goals without leaving the paper trail that a much larger admissions process made inevitable. So what we have is an incoherent pair of precedents and, as is the case with a contradictory proposition, such a contradiction entails anything, everything or nothing.

Grutter and Gratz leave the people in charge of making policy with no reasonable rule for making constitutional decisions. Hopefully, tomorrow's cases will make the task of legislating easier.

Think Your Job Will Go to India? Send it There Yourself

I am almost certain that the story in this article is apocryphal, but there is a certain elegance to a programmer who hires an Indian subcontractor to do his job while still collecting a salary from his employer and "telecommuting."

Our world's market is changing. The only way to move forward is to move, well, forward.

A Milestone for the Omnipresence

If you search on yahoo! for "brooding omnipresence," you will be confronted with good news and bad news. The good news is that this very blog, the brooding omnipresence? is the first result. The bad news is that clicking the link gives you the blog post about gizoogle.

By the way, google, ya'll are behind the curve. The blog only shows up fourth.

Facebook v. MySpace or Does America Have Strong Social Class Disctinctions?

Instapundit linked to an article about the social differences between MySpace people and Facebook people. It's worth checking out.

But I am not at all sure that I agree with it. For example, the author states that "[a]s a society, we have strong class divisions...." Really? Where are they?

For example, Facebook people are supposed to be "hegemonic" and MySpace people are "subaltern." What do these labels mean and how are they "strong class divisions?"

I think that our society does not have strong class divisions and that is why we are concerned with the differences betweeen people who use MySpace and Facebook. If we had actual class distinctions, why would anyone care what SNS you used? We don't have class, we have a dozen proxies for it.

What class are you in? How do you know?

As far as I can tell, when we talk about class we are talking about wealth. And classes based on wealth cannot have sharp distinctions; heck, the income tax brackets are the only tipping points we've got.

Am I way off base?

The Pants Judge Loses

Our horrible plaintiff-judge who sued his dry cleaner for more than $50 million got not one penny from them. The judge ordered the plaintiff to pay the defendants' court costs, but these costs are nothing compared with attorneys' fees.

The judge has not yet decided on the award of fees. We all know which way that decision should turn out.

With the measure you use, so it will be measured unto you.

Opinions! Opinions!

Yesterday, while I was in the car all day, the Supreme Court started spitting out opinions left and right. I've got to study today and get the house ready for book club tonight, but expect full posts dedicated to Hein (addressing taxpayer standing under the Establishment Clause), WRTL (corporate speech in elections and probably the most important case of the three), and Morse (the narrow but interesting Bong Hits for Jesus case).

Give me time, people, and I'll give you the lowdown. But the school cases come out on Thursday, and they might make Monday's opinions look like chicken mcnuggets.

Erin's Heading to Another Country

Have fun Erin. And good luck. You're going to need it.

Seriously.

Planet Earth

If you haven't seen the Discovery Channel series Planet Earth, go find an HDTV and watch it. Wow.

It really says something, to those of you who know me, that Planet Earth makes me want to go buy a nice television. I'm 45% freegan, for crying out loud.

Brentwood Academy Case

I thought I should give ya'll Nashville folks an update on the BA case: Brentwood lost.

Unfortunately, the reasoning behind the case is wildly involved and the justices split in funny ways.

By "funny" I do not mean anything close to anything that will make you laugh. If you want to understand the opinion, Eugene Volokh lays it out as pretty as can be done here.

New CAFE Standards

Congress wants to raise the average fuel economy of cars sold in America. Of all the ways to achieve this end, I suppose we should not be surprised that they picked the most regulatory alternative: have Congress simply require the auto manufacturers to make more efficient cars.

Congress makes its economy standards through the CAFE standards. I want to challenge the wisdom of Congress's action.

There are a few ways to make cars that run more efficiently on gasoline. One way is to install engines with less horsepower. Consumers generally dislike this solution because we like fast cars. Another alternative is to employ non-gasoline fuels in some hybrid technology. This plan is popular but it is not clear how soon the expensive hybrid hardware will become cheap enough to put in every car. Most hybrids are still marketed towards people who care more about the environment than about getting the best car for their money. Also, hybrids that perform as well as current non-hybrids are not substantially more efficient. Car manufacturers will likely employ a lot of hybrid technology to meet the new CAFE standards, but it is really unlikely that hybrid alone will get us there.

The third and most likely way that car makers will meet the CAFE standards is to make their cars lighter. Carbon materials weigh a lot less than metals and most plastics, so the same engine could move a carbon-fiber car easier (more efficiently). The problem is that lighter materials are substantially more expensive than current materials. Consumers should expect that cars will get more expensive, and that they will not have much choice in the matter.

I think we should think of price increases caused by CAFE standards as taxes. Any time the government acts to make us pay more, I think we should always use the lens of tax. And, when examined as a tax, higher CAFE standards don't make much sense.

Think about it: we want to pollute less and use less oil, so we tax car manufacturers in such a way that they raise the consumers' costs of buying a car. There is a much more direct way to accomplish this ends.

If we want to tax oil consumption, why not just levy a gas tax? People who drive more will pay more, and most of us will try to find a way to use less gas so as to pay less money. One way or another, we won't end up paying more for expensive materials in our cars that we really don't care about in the first place.

If lighter materials are the most efficient way to increase fuel efficiency, expect a gas tax to lead to higher demand for lighter cars. If they are not the most efficient way, why are we adopting regulations that lead to that result?

Let's not let Congress pass indirect taxes because they are afraid or unable to pass a direct one. Would you support a gas tax? If not, why would you support new CAFE standards?

Doves

I had a top time listening to music yesterday. I think I'll post a few of my favorites over the coming days.

Check out Doves (not The Doves, just Doves). They seem to fit somewhere between Radiohead and Coldplay: lots of cool sonic stuff going on, lots of wild instrumentation, lots of manipulating the signals, but all of it carrying sweeping pop melodies.

On their myspace, my favorite two songs are "Snowden" and "Cedar Room." Snowden is melodically complex, full of allusions, and deeply philosophical. Cedar Room is a rock anthem--I dig the bass in the chorus!

Their music is full of counterpoint, full of energy, and interesting. Check 'em out

Freegans

Got to love people who try to live their whole lives by dumpster diving.

To say "they're not down with capitalism" is a bit of an understatement. Freegans believe that any resort to the market, like buying toothpaste or gasoline or borrowing money from a bank, is evil.

I wonder what serious vegans think about freeganism. Vegans eat no animal products at all, which has a purity to it. Freegans, on the other hand, only subsist by the evil of others. They avoid waste, not the market.

Intellectual fuzziness aside, Lane Seabolt, if you're out there, this may be your calling.