Bench Memos

Law & the Courts

Contrived Outrage

[Cross-posted on the Corner]

Six years ago, Justice Ginsburg said that she was “surprised” by the Supreme 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. Ginsburg explained that she had thought that “concern about population growth and particularly growth in populations that we don’t want to have too many of” (emphasis added) would instead have led to the ruling that she favored—that the Hyde Amendment was unconstitutional.

If anyone in the Congressional Black Caucus ever raised a concern about Ginsburg’s reference to “populations that we don’t want to have too many of,” I missed it.

But somehow Justice Scalia’s question at oral argument this week about the mismatch theory—which, as amicus briefs argued, shows how racial preferences can harm their putative beneficiaries—has triggered “fierce criticism” from the Congressional Black Caucus.

Let me see if I have this right: It’s okay for Ginsburg to suggest that it would have been better for society if poor blacks had been killed in utero. But it’s not okay for Scalia to raise the possibility, supported by peer-reviewed academic studies, that racial preferences in academia operate (in the words of Richard Sander and Stuart Taylor) to “systematically put minority students in academic environments where they feel overwhelmed” and “end up having high academic attrition or failure, thereby earning fewer degrees, obtaining fewer professional licenses, giving up on aspirations, and emerging from higher education with a deep-seated”—but mistaken—“sense that they didn’t have what it takes to succeed.”

 

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