Two conservatives will join the three Supreme Court liberals in upholding discrimination against Asians

Harvard actively and obviously discriminates against Asians. To get admitted, Asians need an SAT score 140 points higher than whites and 450 points higher than blacks.

Harvard’s justification for this discrimination is almost as painful as the discrimination itself. Harvard says that the Asian applicants have poor personalities.

The way Harvard evaluates an applicant’s personality is not with any standardized test, but with an in-person interview by a bureaucrat – where it just so happens that the bureaucrat can take note of the applicant’s skin color

Asian applicants sued. The suit was in Boston before a federal judge appointed by President Obama. The judge sided with Harvard.

The judge said it was unsurprising that Asian applicants have poor personalities because, after all, their focus on academics probably gave them little spare time to become personable. She didn’t explain why her academics-at-the-expense-of-personality theory apparently did not apply to the few black and white applicants who have test scores as good as the Asians. Maybe she thinks blacks and whites can do it all – get great grades and have a great personality too – but, alas, for some weird genetic reason, Asians cannot.

The court of appeals in Boston upheld the judge. The Asians have now appealed to the Supreme Court.

Under Supreme Court procedure, it takes the vote of four of the nine Justices to hear a case. The Court rejects the great majority of cases that are brought to them.

The Court has a lot of leeway in timing. One way to buy time is to ask the Justice Department for their views on the matter. The Justice Department will then duly weigh in with a brief. This procedural wrinkle consumes months.

The Court has done that in the Harvard case. Everyone knows the views of President Biden’s Justice Department on the matter; they want the Court to affirm the lower court decisions upholding the discrimination. So why bother to ask them for their views?

Here’s what I think is happening. There were four justices who wanted to hear the case in order to reverse the lower courts. But only four. If there were five or more, then they would have simply taken the case and reversed the lower courts.

But four is sufficient to take the case, you might say. Yes, but four is not sufficient to reverse the case. That takes a majority, five.

The four were faced with a strategic problem. If they voted to take the case, then they were setting up yet another discrimination case that would come out the wrong way – upholding the discrimination. To avoid that disastrous outcome, the four who want to reverse the lower courts decided to delay matters by asking for the views of the Justice Department.

There are six conservatives and three liberals in today’s court. Be assured that the three liberals are prepared to vote as a block (they always do in political cases) to uphold the lower court decisions allowing discrimination against Asians. That means two of the six conservatives are prepared to side with the liberals.

One defector is probably Chief Justice John Roberts. Yes, the same Chief Justice who eloquently rejected reverse discrimination in a case years ago where he stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But that was then and this is now. Roberts as Chief Justice is now obsessed with maintaining the status and legitimacy of the Court. He dodges the hard issues, always looking for compromise and consensus. He’s keenly aware of the Democrats’ threat to pack the Court with more Democrats if the Court gets too uppity.

In the Harvard case, Roberts can tell himself that reverse discrimination is a matter for political wrangling, not legal determination. I think he’s wrong but not unreasonable in that position. The political system can indeed tackle this issue, as they have in California where a state initiative years ago outlawed racial discrimination and the people of California soundly defeated a move last fall to reinstate it. (Query: Why aren’t there such initiatives in other states?)

Brett Kavanaugh will be the other defecting conservative. Kavanaugh, like Roberts, has an eye here toward things other than the facts and law before him. In Kavanaugh’s case, his eye is toward his personal image.

Kavanaugh has always been a political animal, and became even more so from suffering a horrific smear in his confirmation hearing. Lying, cheating Democrats such as Michael Avenatti accused Kavanaugh of being a rapist. This was back when Avanatti was a Dem darling and not a prison inmate serving time for extortion.

An experience like that leaves a scar of one kind or another. I assumed Kavanaugh’s scar would harden his conservative convictions. I assumed he would never be caught dead siding with the Democrats who tried to destroy his career, family and life.

But I was wrong. The first hint was when Kavanaugh hired 100% women for his first Supreme Court law clerks. In doing so, he can’t seriously contend that all the most qualified applicants just happened not to be men.

And he doesn’t contend that. He announced beforehand that none of them would be men.

Kavanaugh must see Harvard’s overt discrimination against Asians as quite natural. It’s the diverse thing to do. It’s the virtuous thing to do. It’s the strategic thing to do. Harvard discriminates against Asians to prove to the world they’re not racist against blacks, and Kavanaugh discriminates against men to prove to Democrats he’s not a rapist of women.  

As if Democrats care. Democrats don’t care if a person is a rapist. What they care about is whether a person is a Republican. If he is, then “rapist” is like “racist.” It’s not a serious accusation, but merely an epithet with which to smear them.

Predictably, Kavanaugh got little mileage out of his pandering stunt. The left promptly managed to insult both the sincerity of Kavanaugh and the legal acumen of the women he hired by asserting that they all “looked like models.” Apparently, proving one’s wokeness by hiring women doesn’t count unless they’re ugly.

In any event, the end result will be that three liberal Justices and two semi-conservative justices will uphold discrimination for reasons that have little relation to facts, law or policy, and everything to do with politics, public relations and misguided efforts at burnishing the woke credentials of institutions and individuals.

It’s worth noting that these considerations of Roberts and Kavanaugh are the same kind of extra-judicial sentiments that allowed Jim Crow laws to survive and thrive for generations. Good judges don’t get distracted by such things. They just apply the law to the facts. Period.

The losers in this will be Asian students and, eventually, everyone who thinks the content of one’s character is more important than the color of his skin.

A final note: There has never been an Asian on the Supreme Court.

Glenn K. Beaton practiced law in the federal courts, including the Supreme Court.

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23 thoughts on “Two conservatives will join the three Supreme Court liberals in upholding discrimination against Asians

  1. We should have realized, while we were fiercely defending Kavanaugh, that if he would cry during the hearings, he just might not have what it would take to stand up to the radical left.

  2. “The political system can indeed tackle this issue, as they have in California where a state initiative years ago outlawed racial discrimination and the people of California soundly defeated a move last fall to reinstate it. (Query: Why aren’t there such initiatives in other states?)”
    Maybe you ought to check on how we are actually implementing it, we are not! We also voted against bi-lingual education and against Gay Marriage but had the most liberal civil union laws in the nation. Few if anything we vote for gets acted upon if the California Teachers Union is against it. We are only a shining example of what not to do or if you want to run a very prosperous State into the ground, California has a good model.

    • I’m not sure what you’re referring to in implying that the CA initiative to ban affirmative action was not actually implemented.

      It appears that it actually WAS implemented, and that’s what led to last year’s failed attempt to repeal it.

      For example, in CA state colleges black admissions dropped from 6 to 16% below the average admission rate after implementation of the law. https://www.theguardian.com/us-news/2020/jun/24/california-affirmative-action-aca5-vote

      It’s Asians who get screwed by affirmative action the worst. Asians at Cal Tech where affirmative action is illegal have steadily increased while Asians at MIT and Harvard where affirmative action is legal have declined.

      As I stated in the column, I think Roberts is wrong to dodge this issue, but I do think an argument can be made that it should play out in state political systems, not the Supreme Court. Let CA do it their way (BTW, I’m obviously no endorsing CA political systems as a whole — in most things Ca is inept) and let Mass do it their way.

      That’s exactly what the Court should have done with gay marriage. States were incrementally allowing gay marriage. The Court should have let that play out rather than imposing a new rule nationwide. Same thing regarding abortion. Under our system, states are not just sub-jurisdictions of the federal government. They are supposed to be sovereign in most things.

      • Glenn, as I say below, I disagree that a VALID argument can be made for this to “play out” in the states once this issue reaches the SCOTUS. The job of the SCOTUS above all is to decide Constitutional issues that squarely come before it. It is not “reasonable” for SCOTUS to sidestep a squarely presented Constitutional issue such as this one, which is as squatter as can be. (Of course, I recognize that “an argument can be made” about anything, but I’m sure you mean a reasonable argument, not just any argument.)

      • We don’t disagree, Doug, as a legal matter. The matter is a legal one, and the job of the court is to resolve it.

        I’m simply analyzing the matter through the pragmatic eyes of Roberts. I agree that those pragmatic eyes are the wrong eyes for a judge, but let’s play out the hypothetical.

        I’m reminded of the gay marriage cases. The court went out on a limb to say there was a Constitutional right to gay marriage. They didn’t have to do that. The states were already going in that direction. As a matter of court power in a representative democracy, an argument can be made that we’d all be better off — including gays — if the court had let the people come around on gay marriage rather than forcing it down the throats of all 50 states at once.

        That said, I’ll repeat: I think Roberts is wrong here. This racial discrimination issue is one that should have played out in the court of public opinion 70 years ago. I’m not saying Roberts is right — he’s not. I’m just saying I see where he’s probably coming from.

      • I won’t elaborate much because it would be too lengthy & is slightly off topic but the “pragmatic” (actually, political) consideration that must e figured into Roberts is exactly why he’s turned out to be a disaster. I’m a lawyer-litigator myself, & if I ever got wind of a judge in any of my cases taking extraneous, especially political, factors into account in reaching a decision, I’d file a complaint about him/her to my state’s Bar Counsel as it would be a violation of his/her oath. The fact that Roberts openly stated that the “public integrity of the court” is a factor he considers is, quite frankly, an open admission that he violates his obligation to the parties to the case to decide their case based solely on the facts & the law. Of course, he apparently doesn’t realize that.

  3. The pigs will soon speak and make their ruling …

    “…Clover also notices that the wall on which the Seven Commandments were written has been repainted: Now, the wall simply reads, “ALL ANIMALS ARE EQUAL / BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS.” Eventually, all the pigs begin carrying whips and wearing Jones’ clothes …”

    – George Orwell, Animal Farm (Chapter 10, pg. 3-4)

    • My liberal brother always thought that it was that republicans were the big brothers and the pigs. He still doesn’t have a clue.
      I have a question that is a little off topic. Recently I heard someone say that from the 40s to the 60s the black people were doing well. After Johnson’s civil rights deals things started changing for them. Does anyone know where the information about the 40s to the 60s can be found?

      • You might try a book by Jason Riley, a black author at the Wall Street Journal and a fellow at the Manhattan Institute, called “Please Stop Helping Us.” He wrote an op-ed at the WSJ last week titled “The Destructive Legacy of the Great Society,” which addresses the subject. Possibly still behind the WSJ paywall, but see if there’s a free version:

        https://www.wsj.com/articles/entitlements-welfare-public-housing-great-society-black-family-father-crime-reconciliation-11632257747

        “Between 1940 and 1960 the percentage of black families living in poverty declined by 40 points as blacks increased their years of education and migrated from poorer rural areas to more prosperous urban environs in the South and North. No welfare program has ever come close to replicating that rate of black advancement, which predates affirmative action programs that often receive credit for creating the black middle class. Moreover, what we experienced in the wake of the Great Society interventions was slower progress or outright retrogression. Black labor-force participation rates fell, black unemployment rates rose, and the black nuclear family disintegrated. In 1960 fewer than 25% of black children were being raised by a single mother; within four decades, it was more than half.”

  4. I find it remarkable that we are still arguing about group quotas, this time relative to Asians, particularly when, as a matter of pure fact, Americans of Asian descent do far better economically than any other ethnic group in the country, save one. See, e.g., September, 2020 Census Bureau Report, “Real median household income increased 10.6% among Asian households (from $88,774 to $98,174)”. Americans who profess to be Jewish do even better (in the face of their constant allegations of anti-Semitism). Blacks and those hailing from Central America (frequently described erroneously as, “Hispanics”) do the worst, with blacks trailing the parade. There is a direct correlation between intellect and economic prosperity. Stupid people, i.e., those whose IQ’s are one to two standard deviations below the “average” simply can’t do as well because stupid people lack the capacity to grasp the basic requirements necessary to prosper in an economic system that favors intellectual prowess rather than physical strength. In terms of group characteristics, East Asians have the highest collective IQ, followed by Jews, then whites, followed by Hispanics and finally, African-Americans. There are outliers in every group; i.e., there are many stupid white people, Asians and Jews, but that proportion on the left side of the Bell Curve is far outweighed by those tending toward the middle and right sides. The contrary is true among blacks and Central Americans. You can promote affirmative action (more accurately, racial discrimination) as the answer to this problem all you want, and we have been doing so unsuccessfully for going on three generations now, but it cannot erase the irrefutable facts on the ground. I recall that Justice O’Connor wrote in 2003, “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” It is possible that I may yet live to see her expectation come true. Of course, by that time, there may be no “United States” to benefit from any such judicial decision. Our Chinese overlords will see to it that all non-Chinese, be they white, black, Hispanic or anything else will be under their bootheel. The Chinese laugh at our silly preoccupation with “social justice,” knowing that it is a fantasy concocted by degenerate “intellectuals.” Being intellectually superior and thus multi-talented, they can laugh while simultaneously constructing their new world order to replace the dying West.

  5. Glenn, Good article but I have two comments: I think you’re wrong and unreasonable with this statement: “I think he’s wrong but not unreasonable in that position.” Racial discrimination violates the Constitution in almost all situations. When the Supreme Court is faced with a case presenting the issue of blatant racial discrimination, as here,, it must apply strict scrutiny to the policy & there’s no way this overtly racist policy can survive honestly applied strict scrutiny. It is not a “state’s rights “ issue. 2. It’s “uppity,” not “upidy.”

    • I agree with you on the law, Doug, and that’s why I said I think Roberts’ position is wrong.

      But if he’s trying to conserve the power of the court by letting the states deal with the issue, that’s not unreasonable as a pragmatic matter (but is still, we agree, wrong).

      • I hear you, but in my book, flat out wrong, which this clearly is, is also ipso facto unreasonable. I believe that is the only correct commentary to make about it. Yours effectively gives him a pass. We should no longer stand for that. If the SCOTUS cannot & will not uphold the Constitution of the United States when it’s right there in black & white in front of them & everyone else to see, then the Court is not only worthless but corruptly violates their oaths in the interest of pure politics.

  6. Glenn, Good article but I have two comments: I think you’re wrong and unreasonable with this statement: “I think he’s wrong but not unreasonable in that position.” Racial discrimination violates the Constitution in almost all situations. When the Supreme Court is faced with a case presenting the issue of blatant racial discrimination, as here,, it must apply strict scrutiny to the policy & there’s no way this overtly racist policy can survive honestly applied strict scrutiny. It is not a “state’s rights “ issue. 2. It’s “uppitty

  7. Glen, Great piece. Here’s the rub. If Harvard goes for a straight up meritocratic admission system, they won’t be able to use reverse discrimination to keep their diversity. The incoming classes will be 99 percent white and Asian.

  8. So you’re saying that Kavanaugh exhibits Stockholm syndrome? This is why leftist beatings are worth administering, from the Alinsky point of view — sometimes they work! But not always, as ClarenceThomas has shown.

    Speaking of syndromes, some teachers are vulnerable to the imposter syndrome, whereby they look at their class and think “I don’t belong here!” — especially when the class consists largely of Asian students, as mine did in Hawaii. The only reason I can think of for the charge that they have deficient personalities is that they tend to be orally reticent or, rather, disciplined, actually listening to what the “sensei” has to say instead of shooting their mouths off at every opportunity. This, of course, has contributed to the stereotype of the blank-faced “inscrutable Oriental.” End result? — whenever I felt that I was not clicking on all cylinders in the classroom, one look at students such as these, and I had no doubt.

    And that will have to serve as my explanation for anti-Asian discrimination in the academic realm — that and, of course, their GPAs that beat the hell out of most other students’.

    • I should add that Harvard also has no use for Asians because they tend to have “family values.” It’s easier to fashion Commies out of students who are already fatherless wards of the state to some extent.

  9. I hope you’re wrong, Glenn, but I fear you may be right. My Vietnamese immigrant neighbors are watching this case closely.

    As to why more states don’t have anti-discrimination initiatives: As I recall from civics classes back in the dark ages in school, western states were more “progressive” and have such provisions in their constitutions, while many older states don’t. In NC, for instance, constitutional amendments get on the ballot only after going through the legislature.

  10. IIRC, Malcolm X mentioned something along the lines of “Why would you want to sit at a lunch counter where you are not wanted? Just make your own lunch counter.”

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