I thought that’s what I heard Mr. Payton said, but I had to wait for the transcript to be sure. John Payton is the lawyer who argued the University of Michigan’s case to the Supreme Court in Gratz v. Bollinger on April 1.
His defense of racial preferences in undergraduate admissions was amazingly inept. Listening to it, I began to wonder whether diversiphiles are paying an unexpected price for having ostracized all dissenting opinions for the last two decades. Perhaps by having refused to debate the issue on campus, they now don’t know how to debate it in Court.
No, that’s probably not it. Maybe Mr. Payton was just having a bad day. Justice Scalia asked him why, if the University of Michigan put such a high value on diversity, it didn’t just lower admission standards for everybody. Mr. Payton thought that approach would impose an unwelcome choice, which is what prompted his remark about a “Hobbesian choice.” What in the world is a Hobbesian choice?
It sounds a bit like a Hobson’s choice. Tobias Hobson was an innkeeper in 17th-century Cambridge, England, who gained lasting fame for requiring those who wanted to rent a horse from his stable to take whichever horse was in the stall next to the stable door. Hobson’s approach was praised by the Spectator as a way of ensuring that “every customer was alike well served, according to his chance, and every horse ridden with same justice.” But the phrase has come to mean a “choice” in name only: an imposition.
So was Mr. Payton objecting that Justice Scalia’s question implied no real choice for the University of Michigan? That doesn’t seem right. To the contrary, Justice Scalia’s question pointed to existence of choices that the University could make within the law. It could set high standards and apply them consistently to all students regardless of race or it could set lower standards and apply them consistently to all students regardless of race. It could take the horse in the stall next to the stable door, or any other horse in the stable so long as he agreed to treat that horse fairly. No Hobson’s choice there.
So presumably Mr. Payton didn’t mean “Hobson’s choice.” A “Hobbesian choice” must be something else. A choice like that made by Thomas Hobbes, the English political theorist best known for his justification of monarchy, The Leviathan? A choice that once weighed on Hobbes the stuffed tiger in Bill Watterson’s comic strip “Calvin & Hobbes”?
Thomas Hobbes is perhaps best known for his exceptionally gloomy view of the human condition. Humans, he thought, are driven most basically by a “restless desire of power after power.” If men are not subjected to a king or other dominant authority, they live, said Hobbes, in a state of war “of every man against every man.” That condition puts all in “continual fear and danger of violent death; and [makes] the life of man solitary, poor, nasty, brutish, and short.”
So did Mr. Payton mean that, in the absence of racial preferences, the state of Michigan would be reduced to the Hobbesian state of nature, with the war of all against all? That is, I suppose, one way of considering race neutral college admissions criteria. Every student for himself. Still, I doubt that the result of race-blind admissions in Ann Arbor would lead to an increase in the number of students who elect the solitary, poor, nasty, brutish, and short lifestyle.
If Mr. Payton was in fact referring to Thomas Hobbes, he may have been paying wry tribute to the guiding spirit of diversity. After all, Hobbes is a kind of patron saint of illiberal oppression. He not only favored a powerful central government but, like today’s diversiphiles, recognized the merits of high-minded obfuscation. Hobbes recommended encouraging people not to think too deeply about official rationales, lest they discover the phoniness inside. “For it is with the mysteries of our religion, as with wholesome pills for the sick, which swallowed whole, have the virtue to cure; but chewed, are for the most part cast up again without effect.”
So with diversity? Swallow it whole and it will work, but start to chew it over and all the magic effects of “critical thinking,” promotion of democratic participation, and loads of good fellow feeling will be lost?
I understand that lawyers arguing before the Supreme Court have only a few precious minutes, and many of those are taken up with answering questions. Thus they have to give pithy answers and sometimes depend on sly allusions that may convey a lot to the Court but can puzzle laymen. Mr. Payton appears to be a master at this kind of coded communication.
And therefore he may have intended to combine this erudite reference to Thomas Hobbes with his comic-strip namesake, the skeptical plush toy tiger whose shares the adventures of Calvin, the six-year-old boy with the hyperactive imagination. In the strip, the dubious Hobbes repeatedly gets into the transmorgifier with Calvin knowing it will propel them into mischief and disaster. The Hobbesian choice, in this context, is to assume unwanted adult responsibility — and I can understand why Mr. Payton would object to that. He would rather transmogrify unqualified kids into college students.
But perhaps I am misreading Mr. Payton’s remark. It may be that he was not referring to the transmorgifier episodes, but to some other Calvin & Hobbes adventure. “Attack of the Snow Goons?”
The New York Times, the Washington Post, and dozens of other news outlets are busy spinning the story of what happened at the oral arguments. Essentially they are saying that higher education’s “diversity” doctrine looks like it will survive the twin legal challenges of Grutter v. Bollinger and Gratz v. Bollinger. That could be, but I read the Court differently. Several of the justices — including some who are thought to be soft on racial preferences — asked the University of Michigan’s lawyers skeptical questions.
That day diversity’s defenders came across as stridently self-righteous and pretty sloppy about the details. Mr. Payton’s aversion to making a “Hobbesian choice” captures that perfectly.
— Peter Wood is author of Diversity: The Invention of A Concept and a professor of anthropology at Boston University.