Bench Memos

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Judge Kozinski on Death by Lethal Injection


Ninth Circuit chief judge Alex Kozinski, in dissent from the denial of rehearing en banc in Wood v. Ryan, opined that Arizona “should and will prevail” in its effort to carry out the death sentence. At the same time, he offered some noteworthy comments on why, in his judgment, execution by lethal injection is “an enterprise doomed to failure”:

Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments.… But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.

After proposing firing squads as the “most promising” means of execution, Kozinski observed:

Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.

I think that Kozinski’s observations deserve serious attention.

A Very Busy Week


Things sure weren’t quiet on the legal front while I was on vacation, and I’ll strive to catch up as quickly as I can.

One indication of how fast-moving things were: On Saturday, in Wood v. Ryan, a divided panel of the Ninth Circuit preliminarily enjoined the state of Arizona from proceeding with the execution of an inmate who contended that the state’s failure to provide him specific information (e.g., lot numbers) about the drugs to be used in his execution violated his First Amendment rights. (Majority opinion by Judge Sidney Thomas; dissent by Judge Jay Bybee.) On Monday, over the dissent of eleven judges (including recent Obama appointee John Owens), the Ninth Circuit denied rehearing en banc. Then yesterday evening, the Supreme Court, without recorded dissent, vacated the Ninth Circuit panel ruling. The execution of the inmate, Joseph Wood, is scheduled to take place some time today.

By contrast: The murders that provided the basis for Wood’s death sentence—murders of his estranged girlfriend Debra Dietz and her father Eugene Dietz—occurred in 1989, and Wood’s conviction and sentence were affirmed on direct appeal twenty years ago.


A Major Defeat for the IRS and Victory for Common Sense in Halbig v. Burwell


Today was, ironically, a victory for Obamacare but a defeat for President Obama, as the D.C. Circuit upheld the text of the law over IRS attempts to rewrite it through regulation. The court came to the unremarkable but nonetheless controversial conclusion that, as Judge Randolph’s concurrence put it, “an Exchange established by the federal government cannot possibly be ‘an Exchange established by the State.’” This commonsense holding is another major defeat for the administration in its attempts to shore up the president’s namesake legislation through the clever use of pens, phones, and politicized regulators.

As Jonathan Keim and I have described (see our amicus briefthree-part seriesoral-argument discussion, and post-argument commentary), this case addresses attempts by the IRS to expand the scope of Obamacare’s premium subsidies. The law only provides those credits for plans purchased on exchanges “established by a State under section 1311” of the Affordable Care Act. As it turns out, just 14 states (and the District of Columbia) established their own exchanges, leaving the federal government to establish exchanges for the remaining 36 states. 

Dismayed that the resulting unavailability of subsidies would undermine their efforts to convince people to buy insurance on the exchanges, the IRS issued a regulation rewriting the section to authorize subsidies for exchanges established by the federal government, instead of just those “established by the State.” By offering these illegal subsidies, they induced an estimated 4 to 5 million people to buy insurance that otherwise would have been overly expensive.

But the subsidies don’t come for free. Not only do they cost taxpayers money, they also trigger the individual and employer mandates for more than 60 million people in the states that did not set up exchanges. The IRS regulation meant all of the people in those states would be forced to either buy insurance they didn’t want or face hefty fines. Several individuals and employers subject to those mandates brought suit in the D.C. Circuit and won in today’s decision.

The three-judge panel split 2–1. Judge Griffith wrote the majority decision for himself and Senior Judge Randolph, finding the regulation to be contrary to the text of the ACA. Randolph also filed a brief concurrence emphasizing that the precedent controlled their decision at both the D.C. Circuit and Supreme Court levels and labeling the IRS regulation “distortion, not interpretation.” Senior Judge Edwards filed a dissent that found the IRS rule was a reasonable interpretation of an ambiguous provision.

Griffith’s majority is detailed, workmanlike, and clear — probably written with an eye to the likely motion for rehearing en banc. After all, this case is precisely the type of challenge the president had in mind during his aggressive push last year to pack the D.C. Circuit with his own nominees. Now the active judges include a lopsided seven Democratic nominees and four Republican nominees. And although the D.C. Circuit traditionally has declined to take many cases en banc as a matter of collegial respect, the Obama administration’s politicization of the court may have changed that.

The plaintiffs argued — and the court ultimately agreed — that “a federal Exchange is not an ‘Exchange established by the State,’” and thus that the statute passed by Congress already unambiguously determined which exchanges were covered by subsidies. 

The court also actually agreed with the government on a significant point. It held that, although the federally operated exchanges were authorized under section 1321, they could be said to be established under section 1311 because that section describes the state exchanges they were replacing. But that didn’t get the government quite far enough. As the court analyzed the phrase, it has three functional parts: “(1) an Exchange (2) established by the State (3) under section 1311″ and “federal Exchanges satisfy only two: they are Exchanges established under section 1311. Nothing in section 1321 deems federally-established Exchanges to be”“Exchange[s] established by the State.’” Pretty straightforward stuff.

The court also noted that elsewhere in the ACA, several non-state entities were explicitly included in this definition. For example, territories (which have since been exempted from the law by ad-hoc executive determination) if they “elect[] . . . to establish an Exchange . . . shall be treated as a State.” 42 U.S.C. § 18043(a)(1). The fact that Congress included some non-state exchanges in this section strongly indicates that leaving others out was intentional.

But even in the face of such clear statutory language, the government had sought refuge in the absurdity doctrine, which says that the court will try to avoid truly absurd results even if the statute’s plain language seems to demand them. But the court found that each absurdity proposed by the government wasn’t actually odd enough to meet the “high threshold” for allowing the court to second-guess the words of Congress. It also noted that nothing in the statutory history supported the government’s position that “Congress meant something other than what it literally said.”

Ultimately, the dissent latched onto the government’s final attempt to shore up its interpretation by claiming that without subsidies, the entire ACA system would collapse under its own weight. But, as the Supreme Court held just this term, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.”

This decision, when it goes into effect, will have broad ramifications for the millions of individuals who were promised subsidies that were not authorized by the ACA. It will simultaneously free tens of millions more from Obamacare’s onerous government mandates. But its biggest impact — achieved by simply enforcing the laws passed by Congress — will be the reinforcement of the basic democratic structure of our society.

Judge Griffith put it better than I could:

Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.

Well said.

Halbig v. Burwell: Plain Language Trumps ‘Purpose’ and ‘Intent’


The D.C. Circuit’s carefully reasoned decision striking down the IRS’s unlawful tax subsidies in Halbig v. Burwell undermines the administration’s interpretation of the Affordable Care Act (ACA). As I noted before, a three-judge panel of the Court of Appeals for the D.C. Circuit held 2–1 that the IRS had exceeded its authority in issuing a tax regulation that mandated tax subsidies through federal Obamacare exchanges that were not “established by the State.” Judge Griffith wrote the majority opinion, joined by Judge Randolph (who also wrote a separate concurring opinion). Carter appointee Judge Harry Edwards dissented.  (The Fourth Circuit issued a contrary opinion today, too. More on that later.). 

This case was all about text: What role does the actual language of a statute play when Congress has passed it as part of a complex legislative scheme that, quite frankly, includes bad policy decisions? How much latitude does the government have to re-interpret statutory text in trying to change the policy? And where do courts draw the line between interpretation and distortion? This post will examine how Judge Griffith and Judge Edwards answer those questions.

Judge Griffith took what one might call a “textualist” approach, reasoning from the text and its meaning and rebutting the alternative interpretations. Judge Randolph’s concurring opinion agreed and made the sharper point that an exchange established by the federal government cannot possibly be an exchange established by the state, and that “to hold otherwise would be to engage in distortion, not interpretation.” Judge Edwards, as predicted, took the broadest interpretation of the ACA, relying on a broad understanding of the ACA’s purpose and policy, which he then used to trigger Chevron deference. (Somewhat oddly, Judge Edwards directs most of his fire at the appellants, not the majority opinion.)

Judge Griffith’s majority opinion recognized the relationship between the Constitution and the court’s duty to focus on the statutory text, noting that the Constitution “assigns the legislative power to Congress, and Congress alone, see U.S. Const. art. I, § 1, and legislating often entails compromises that courts must respect.” The only legal instrument that triggers the executive’s responsibility to execute it — a bill that passes both houses of Congress and is signed or acceded to by the president — is the statutory text. Because legally binding compromises can result in the passage of statutory text, the statutory text is the proper focal point for the courts.

Nevertheless, Judge Griffith pointed out what he called a “fork” in the D.C. Circuit’s precedent regarding legislative history. One of those forks includes the traditional rule that if the statutory text is unambiguous, there is no need to resort to legislative history. The other fork, from a case called Sierra Club v. EPA (D.C. Cir. 2008), commended legislative history “to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” (As a side note, a quick review of the precedent cited for Sierra Club’s search for “new light” in legislative history finds little support in Supreme Court precedent. It appears to be an artifact of in-circuit debate.)

Keep reading this post . . .

Halbig v. Burwell: D.C. Circuit Strikes Down Unlawful IRS Obamacare Subsidies


The D.C. Circuit just handed down its landmark decision in Halbig v. Burwell, a case challenging the IRS’s interpretation of its ability to grant tax subsidies under the Affordable Care Act. In a 2-1 decision, the D.C. Circuit vacated the IRS’s regulation on the grounds that the agency was not permitted to give tax subsidies except in states that had an Obamacare exchange “established by the State.” Judge Griffith wrote the majority opinion with Judge Randolph joining and writing a separate concurrence. Judge Edwards dissented.  

I am currently reading the opinion and will have thoughts once I’m finished. Until then, you might enjoy reading my previous Bench Memos coverage of the case here and here. It’s hard to overstate how important this decision is. 


This Day in Liberal Judicial Activism—July 22


2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.  

2013—Barely three weeks after the Supreme Court’s ruling in United States v. Windsor, federal district judge Timothy S. Black enters an order barring the state of Ohio from applying its laws that prohibit recognition of same-sex “marriages.” Contending that “This is not a complicated case,” Black simply ignores those parts of Windsor that recognize the broad authority of each state to define and regulate marriage within its borders.

Black’s one-sided reading of Windsor will quickly be repeated by other judges.

This Day in Liberal Judicial Activism—July 20


Pregnancy and Disparate Impact


The U.S. Equal Employment Opportunity Commission this week has issued new “Enforcement Guidance” on “Pregnancy Discrimination and Related Issues,” and it asserts that “disparate impact” causes of action may be brought in this area under federal law. I’d like to flag the fact that, once upon a time, the U.S. Department of Justice took a contrary position, as discussed in this Seventh Circuit majority opinion and dissent. The Supreme Court, to my knowledge, has not resolved this issue.

This Day In Liberal Judicial Activism—July 17


2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

‘The Evangelical Origins of the Living Constitution’


That’s the arresting title of what sounds like a provocative new book by John Compton, assistant professor of political science at Chapman University, reviewed here by George Leef.

Chris Christie’s Abysmal Record on Judges


The Judicial Crisis Network, my organization, has launched a project to highlight Governor Chris Christie’s awful record on judicial appointments.  Please visit the new website, share the links, and watch the video below.

The timing of the launch, just ahead of Governor Christie’s fundraising trip to Iowa, seems to have sparked additional interest from the press, leading Governor Christie’s spokesman, Mike DuHaime, to respond by spinning Christie’s record.  According to DuHaime:

Gov. Christie has nominated multiple conservatives to the Supreme Court but several have been blocked by the Democrat Senate. Yet, Governor Christie has still been able to get three Republicans on to the state’s highest court, making it more conservative.

By conservative, is Christie’s spokesman referring to the justices who in 2013 ruled unanimously in favor of same-sex marriage?  The justices who in 2013 unanimously voted to open the floodgates to trial lawyers seeking to attack companies under state law?

Is he referring to Bruce Harris, the failed nominee who equated marriage between a man and a woman with segregation and slavery and believed that opposition to same-sex marriage violates the “separation between the state and religion”?  Harris was rejected after admitting during his hearings that he had virtually no courtroom experience.

Or maybe Christie’s spokesman was referring to his most recent nominee, Lee Solomon, who local columnist Paul Mulshine says “has a history as a pro-choicer” and was once endorsed by New Jersey Right to Choose.

If these are Christie’s conservative nominees, then Christie’s definition of a conservative sounds an awful lot like a liberal.  

This Day in Liberal Judicial Activism—July 15


2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination. 

Driving Right


Pardon this personal indulgence as I get ready to head out the door on vacation.

It’s always a pleasure to run across Bench Memos readers, all the more so in unexpected situations. As I was wrapping up the purchase of a car on Saturday, the salesman Matt, taking note of my name, asked if I wrote for Bench Memos. It turns out that Matt is a dedicated reader of NRO and Bench Memos. Even better, he’s an Army veteran who served in Iraq—in the same platoon with David French (whose blogging on the Corner I especially enjoy). Thanks for reading, Matt, thanks for being so patient with me on Saturday, and special thanks for your service to our country.

As it happens, when I last went car-shopping—after Superstorm Sandy demolished our minivan—I had a similar experience. In the waiting room of the mechanic’s shop where I was having a used car inspected, I saw a fellow reading, of all things, Russell Kirk’s The Conservative Mind. We struck up a conversation, and I quickly discovered that he was a big fan of the Ethics and Public Policy Center (the think tank I run) and of NRO. Like Matt, he was also a military veteran.

Straining (admittedly) to connect this post to Bench Memos’ substantive portfolio, I’m reminded that driving is a skill that Justice Kagan “has not yet mastered.” I’m certainly not contending that there is any correlation between being a good judge and being a good driver, but I do marvel at the fact that someone like Kagan who has difficulty with the simple task of maneuvering a car shows no humility about her ability to re-engineer society around the latest progressive pieties. (Ditto for Justice Breyer and riding a bicycle.)

This Day in Liberal Judicial Activism—July 14


1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

This Day in Liberal Judicial Activism—July 12


2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”? 

Senator Richard Durbin, D-Idiot?


Democratic senator Richard Durbin contends that the Hobby Lobby ruling violates the “fundamental premise” of Griswold v. Connecticut (1965), which held that a constitutional right of privacy protects the use of contraceptives by married persons (and which was extended some years later to unmarried persons). Durbin complains that Chief Justice Roberts and Justice Alito, as members of the Hobby Lobby majority, failed to live up to their statements in their confirmation hearings in which (per Durbin’s paraphrase) “they both said they stood by the Griswold decision.”

Senator Durbin is either a fool or a demagogue (or both). The constitutional right set forth in Griswold is a right against governmental interference, not a right to force a private employer to pay for your contraception. That explains why neither the Obama administration in its Hobby Lobby brief nor even Justice Ginsburg in her histrionic dissent even mentions Griswold.

As it happens, one opinion in Hobby Lobby does mention Griswold. That is Justice Alito’s majority opinion, which, as part of its tentative exploration whether the HHS mandate serves a compelling governmental interest, cites Griswold for the proposition that “Under our cases, women (and men) have a constitutional right to obtain contraceptives” (p. 39). Thus, beyond the fact that Hobby Lobby does not conflict at all with Griswold, Alito and Roberts expressly “stood by the Griswold decision” in Hobby Lobby.

Sotomayor to Wheaton’s Religious Beliefs: Drop Dead


I’m finally reviewing the Supreme Court’s order granting Wheaton College an injunction against the government, which relieves the Christian college from the obligation of filing an HHS-mandated form instructing the college’s third-party administrator to provide emergency contraceptives under the college’s insurance plan. (Ed Whelan has previously discussed the case here.)

As Justice Sotomayor’s dissent recognizes, Wheaton believes that filling out HHS’s Form 700, which instructs its third-party administrator to provide all of the regulation-ordered contraceptives, makes it complicit in potentially killing a human being. (Several of the required contraceptives may prevent implantation of a fertilized egg, thus causing the death of a human embryo.) This is Wheaton’s religious belief, and Justice Sotomayor doesn’t question the college’s sincerity or beliefs, at least not in those terms.

Instead she does it in a more roundabout way. For instance, Justice Sotomayor says that complicity in taking a human life is not a “substantial burden” within the meaning of RFRA with these familiar introductory words (link added, of course): 

Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so. 

But as Justice Sotomayor recognizes, Wheaton thinks that by filling out the form and instructing its administrator to provide the potential abortifacients, it will be committing a “grave moral evil.” One imagines that whatever the technical standard for “substantial burden,” complicity with unjustified homicide would fit within it.

Onward and upward, goes the dissent, declaring that “Wheaton’s complicity theory cannot be legally sound.” It then goes on to quote a particularly egregious passage from Judge Richard Posner’s decision in the Notre Dame contraceptive mandate case that second-guesses the moral reasoning of a Quaker who objects to armed service. (If you have not had a chance to read Judge Posner’s shining example of how not to think about religious freedom, you can read more about it here.)

But wait a minute – why is Justice Sotomayor (or Judge Posner, for that matter) delving into the significance of hypothetical chains of causation? One might expect that it’s unintentional. Not so, as it turns out: “The filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation” (emphasis added). “Merely” is the key word: The dissent is downplaying the moral significance of filling out the form, even when that’s exactly what courts must not do when the religious belief is sincere.

The fault line clearly marks a disturbing substantive disagreement about how religious liberty is supposed to work. Like Judge Posner, Justice Sotomayor and the two other dissenters find it irresistible to second-guess the religious beliefs of the litigants before them. And that’s a problem.

[UPDATE 3:32 P.M.: Eugene Volokh discusses this issue in an excellent, highly detailed blog post here.]

There She Goes Again


Last I checked, former Supreme Court justice Sandra Day O’Connor maintained (rightly or wrongly) that she had retired only from regular active service and remains a federal judge eligible to sit on lower-court cases. That somehow hasn’t stopped her from engaging in crass politicking on state judicial-selection methods and in other fishy and inappropriate activity.

From a tweet from New York Times reporter Adam Liptak, I’ve learned that O’Connor has recently authored—or, rather, signed her name to—a report (available here) setting forth a model for state judicial selection. She modestly titles that model the “O’Connor Judicial Selection Plan,” and she is working to promote it in states across the country. As Liptak highlighted in his tweet, her report includes a “Dear Reader” letter from O’Connor on Supreme Court stationery.

If your phone rings and awakens you in the middle of the night, don’t be alarmed. It will probably just be another robocall from O’Connor seeking your support for a ballot initiative that adopts the O’Connor Judicial Selection Plan.

“Affirmative Action” and “Diversity”


It was during freshman week in college, I believe, that I endured a longwinded speech by Harvard president Derek Bok on the wondrous virtues of diversity. “He keeps talking about ‘diversity,’ but he never explains what he means by the term,” I complained.

More than 35 years later, not much has changed. As Yale law professor Peter Schuck observes in an excellent essay for National Affairs (the outstanding quarterly journal founded and edited by my EPPC colleague Yuval Levin), “few discussions of diversity and the diversity rationale for affirmative action even address what diversity actually means, much less explain which groups and which kinds of attributes create diversity value.” In twenty crisp pages, Schuck explores the evasions and contradictions that plague defenses of so-called “affirmative action.” 

Schuck laments that the Supreme Court seems not to have learned the lesson that “universities that are keen to implement race-based affirmative action … will figure out a way to do so unless the Court emphatically and clearly prohibits it.” As Schuck points out—and as this City Journal review, by Mark Pulliam, of Tim Groseclose’s Cheating: An Insider’s Report on the Use of Race in Admissions at UCLA discusses more fully—even when state law does clearly bar racial preferences, universities will resort to subterfuges to evade the law.

Schuck concludes:

The public opposition to race-based affirmative-action programs on campus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opacity, dissimulation, and even evasion by its administrators and advocates.

And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.

The Anti-Hobby Lobby Bill


On the Corner, I explain that under the guise of “protect[ing] women’s health from corporate interference,” the bill that Senate Democrats are proposing in response to the Hobby Lobby ruling would deprive religious entities of all religious-liberty protections against having the HHS mandate directly imposed on them. 


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