Justice Antonin Scalia at one point during the arguments said, "There are those who contend that it does not benefit African Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well," as opposed to Texas' flagship campus in Austin. There, he said, some are "being pushed ahead in classes that are too fast for them." Scalia went on to add that one brief submitted in the case had said that "most of the black scientists in this country don't come from schools like the University of Texas....They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too too fast for them."
http://www.cbsnews.com/news/supreme-court-hears-arguments-on-affirmative-action-for-college-admission/
Shocking.
That was sarcasm.
Apparently the GOP has dropped the euphemisms and has gone straight to the racism and xenophobia.
Past time for Scalia to retire. He is obviously in his dotage and his professional filter has failed.
Quote from: finehoe on December 10, 2015, 02:05:33 PM
Apparently the GOP has dropped the euphemisms and has gone straight to the racism and xenophobia.
Because Scalia referred to an amicus brief during oral arguments?
Quote from: Dog Walker on December 10, 2015, 02:13:31 PM
Past time for Scalia to retire. He is obviously in his dotage and his professional filter has failed.
Professional filter? You don't want justices to consider all of the evidence before them?
Study: Scalia Better Off in "Less Advanced" Court
By Andy Borowitz
WASHINGTON (The Borowitz Report)—A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was "less advanced" than the United States Supreme Court.
According to the study, Scalia's struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is "too demanding" for a person of his limited abilities.
"Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel," the study said.
The legal scholars theorized that Scalia would be more likely to thrive in a "lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him."
"If Scalia were reassigned to a 'slow track' institution such as a town traffic court, that would be better for everyone," the study recommended.
http://www.newyorker.com/humor/borowitz-report/study-scalia-better-off-in-less-advanced-court
Quote from: finehoe on December 11, 2015, 09:09:28 AM
Study: Scalia Better Off in "Less Advanced" Court
By Andy Borowitz
WASHINGTON (The Borowitz Report)—A new study conducted by legal scholars indicates that Justice Antonin Scalia would fare better if he served as a judge at a court that was "less advanced" than the United States Supreme Court.
According to the study, Scalia's struggles to perform his duties in a competent fashion stem from his being inappropriately placed on a court that is "too demanding" for a person of his limited abilities.
"Forcing Justice Scalia to weigh in on complex legal issues that he lacks the background or aptitude to comprehend is, at the end of the day, cruel," the study said.
The legal scholars theorized that Scalia would be more likely to thrive in a "lesser court where he does not feel that he is being pushed to hear cases that are too challenging for him."
"If Scalia were reassigned to a 'slow track' institution such as a town traffic court, that would be better for everyone," the study recommended.
http://www.newyorker.com/humor/borowitz-report/study-scalia-better-off-in-less-advanced-court
So your defense when people question your intent on labeling Scalia as a GOP racist is to post a humor article based on a strawman argument. Confirmation Bias confirmed. Scalia's argument needs to be taken in context of his consideration of the Amicus brief in support of the plaintiff which a good judge would consider not outright dismiss.
Quote from: Snufflee on December 11, 2015, 11:52:54 AM
So your defense when people question your intent on labeling Scalia as a GOP racist is to post a humor article based on a strawman argument. Confirmation Bias confirmed. Scalia's argument needs to be taken in context of his consideration of the Amicus brief in support of the plaintiff which a good judge would consider not outright dismiss.
Why is that? As an originalist, Scalia should only be considering the legal issue in the case, which is whether affirmative action programs such as that being employed by the University of Texas are unconstitutional, not whether they are a good idea.
He is asking a probing question based on the merits and the mismatch theory, like it or not it has to be probed and does hold merit in this case. Whether or not you or I subscribe to this theory is not important to the over arching discussion of Scalia's line of reasoning or questioning. He is considering an Amicus brief based on the mis-match theory and posed a question based on this brief. he would do the court and eventual legal precedence a disservice by holding his tongue because he may earn the scorn of the NYT or other left leaning media organizations. As to other arguments based on the courts make up the reverse is true for the more liberal justices who would dismiss the mis-match theory and the Amicus brief because it doesn't fit the current narrative of race relations in the US as of 2015. So in essence the entire court is corrupted and to single out a specific justice because they don't agree with "YOU" is just as bad as an arch conservative singling out a more liberal justice.
Whether he agrees or disagrees with me is irrelevant. The point is the hypocrisy of Scalia who loves to lecture liberals about the distinction between good laws and constitutionally permissible laws, aka "judicial activism". He says to confuse these two categories is the essence of the judiciary's illegitimate usurpation of the legislative role. Yet Scalia has no problem reconciling his supposed opposition to judicial activism and his supposed fidelity to originalist interpretation when it comes to a law conservatives don't like.
Who knew asking questions was activism... ::)
Quote from: BridgeTroll on December 11, 2015, 01:41:59 PM
Who knew asking questions was activism... ::)
So what is the question he's asking here?
"There are those who contend that it does not benefit African Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well," as opposed to Texas' flagship campus in Austin. There, he said, some are "being pushed ahead in classes that are too fast for them." Scalia went on to add that one brief submitted in the case had said that "most of the black scientists in this country don't come from schools like the University of Texas....They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too fast for them."
Quote from: finehoe on December 10, 2015, 02:05:33 PM
Apparently the GOP has dropped the euphemisms and has gone straight to the racism and xenophobia.
+1
Quote from: finehoe on December 11, 2015, 01:58:56 PM
Quote from: BridgeTroll on December 11, 2015, 01:41:59 PM
Who knew asking questions was activism... ::)
So what is the question he's asking here?
"There are those who contend that it does not benefit African Americans to to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well," as opposed to Texas' flagship campus in Austin. There, he said, some are "being pushed ahead in classes that are too fast for them." Scalia went on to add that one brief submitted in the case had said that "most of the black scientists in this country don't come from schools like the University of Texas....They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too fast for them."
What was the answer? I hear the angst regarding the question... was there an answer? Here is the brief... enjoy!
http://www.scotusblog.com/wp-content/uploads/2015/09/Sander-brief-for-Fisher-v-Univesrity-of-Texas-corrected.pdf
Quote from: BridgeTroll on December 11, 2015, 02:26:42 PM
What was the answer? I hear the angst regarding the question... was there an answer?
Again, what question?
Enjoy your outrage... ;)
Scalia Comments Shine Light on U.S. Institutional Racism
Supreme Court Justice Antonin Scalia's reprehensible suggestion that affirmative action harms blacks by offering opportunities that transcend their intellectual talents and abilities exemplifies the crisis of institutional racism at the heart of American democracy.
That a sitting Supreme Court justice could feel emboldened enough to articulate the kind of boldfaced belief in white supremacy thought to have ended with formal racial segregation illustrates the contours of the nation's New Jim Crow, a system that justifies the dearth of African-American bodies in predominantly white spaces by questioning whether they truly belong there in the first place.
Scalia made the suggestion this week during oral arguments for Fisher v. University of Texas. After admitting to not being "impressed by the fact that the University of Texas may have fewer" African Americans, Scalia went further: "Maybe it ought to have fewer. I don't think it stands to reason that it's a good thing for the University of Texas to admit as many blacks as possible."
http://www.newsweek.com/scalia-comments-shine-light-us-institutional-racism-403823
Quote from: FlaBoy on December 11, 2015, 10:30:06 PM
"There are those who say..."
Isn't that the point of the Socratic method of adversarial hearings in front of an en banc court? To ask probing questions and get to see how the attorneys respond to those difficult questions.
So what was the question he was asking?
So is there a nice way to say, "Yes you meet our minimum thresholds and you'll probably struggle with the curriculum, but because of your race, we're going to give you a shot anyhow."?
Quotet did not respond to our 2013
request). In 2006, UNC Chapel Hill
assigned an academic index to all students,
based on such factors as test scores and
high school grades. For black applicants
with an academic index between 3.1 and
3.2, the admissions rate was 100% -- that
is, all 66 black applicants in this academic
index range were admitted. However, for
white students in this academic range, the
admissions rate was only 42%, and for
Asians it was 43%
QuoteUniversity of Oregon admitted 100% of all
black applicants with an index above 600.
In contrast, white applicants with an index
between 600 and 649 were admitted at a
rate of 2.4%
QuoteUniversity of
Arizona's School of Law, we find that the
school admitted 100% of black applicants
with academic index scores above 700, in
the 2007 admissions cycle, but only 10% of
white applicants in the index range from
700 to 749.
Quote from: Non-RedNeck Westsider on December 12, 2015, 12:26:39 PM
So is there a nice way to say, "Yes you meet our minimum thresholds and you'll probably struggle with the curriculum, but because of your race, we're going to give you a shot anyhow."?
Why would you even need to say it in the first place?
Quote from: Snufflee on December 11, 2015, 01:04:05 PM
He is asking a probing question based on the merits and the mismatch theory, like it or not it has to be probed and does hold merit in this case. Whether or not you or I subscribe to this theory is not important to the over arching discussion of Scalia's line of reasoning or questioning. He is considering an Amicus brief based on the mis-match theory and posed a question based on this brief. he would do the court and eventual legal precedence a disservice by holding his tongue because he may earn the scorn of the NYT or other left leaning media organizations. As to other arguments based on the courts make up the reverse is true for the more liberal justices who would dismiss the mis-match theory and the Amicus brief because it doesn't fit the current narrative of race relations in the US as of 2015. So in essence the entire court is corrupted and to single out a specific justice because they don't agree with "YOU" is just as bad as an arch conservative singling out a more liberal justice.
You can argue mismatch theory without bringing up the race of the student in question. Proponents of mismatch theory focus on GPA and test scores rather than race. Scalia is bastardizing the theory by making it all about race. If there is some correlation between race and application strength, that points to some kind of systemic disenfranchisement (or you can insert your own super-racist theory), which if anything, should be an argument for more proactive affirmative action.
Also, mismatch theory should be called mismatch hypothesis, because there is basically no evidence that people placed in schools above their score level end up with worse outcomes than similar students at worse schools. It's a somewhat interesting idea, but there is no evidentiary basis for it. As such, I don't think it should get any air time in a Supreme Court proceeding. If an argument is made based on 'mismatch,' then it would basically have to take away any prerogative the school has to admit students as it sees fit. That means no relaxing academic standards for athletes, etc. That would get some people up in arms.
Quote from: Non-RedNeck Westsider on December 12, 2015, 12:26:39 PM
QuoteUniversity of Oregon admitted 100% of all
black applicants with an index above 600.
In contrast, white applicants with an index
between 600 and 649 were admitted at a
rate of 2.4%
QuoteUniversity of
Arizona's School of Law, we find that the
school admitted 100% of black applicants
with academic index scores above 700, in
the 2007 admissions cycle, but only 10% of
white applicants in the index range from
700 to 749.
These two statistics are incomplete, or purposefully misleading. Actually, they're incomplete either way, they just might also be purposefully misleading. I'd wager purposefully misleading, as the omissions could only serve to exaggerate the admittance difference.
Quote from: FlaBoy on December 14, 2015, 09:18:27 AM
Finehoe, he was using a supplemental brief (briefs filed by third parties in favor or against a party once the case reaches appellate courts) and one of the main arguments had to do with the extremely high rate of drop outs in African-American students once they reach universities. The African-American dropout rate is much higher overall but having worked at a large research university at one point, there is always a real worry about the level of attrition among minority students which is even higher at the large research universities.
Why should this even matter to a justice who professes to be an originalist? By his own writings and speeches, Scalia says that interpretation of the Constitution should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. His only be concern (according to him) should be 'does the Constitution allow the affirmative action admissions policy of UT.' Dropout rates and attrition statistics are irrelevant to the constitutional question.
Again, according to his own self-professed views, he isn't there to judge if a law has good, bad or unintended consequences, but only to judge if it is permitted by the Constitution.
Quote from: stephendare on December 14, 2015, 09:21:00 AM
What would you say makes Scalia a legal titan. A thousand apologies if the question wasn't clear enough.
Any Supreme Court Justice who has written hundreds of opinions in the span of his or her tenure is immediately in a very limited class of legal scholars. Scalia has also written some of the most influential decisions of the past quarter century. From issues concerning second amendment, disparate impact discrimination, commerce clause (including drug use), Tenth Amendment revitalization, religious freedom, he has written the current law of the land. He has also been the stalwart of conservatism in the Court since he was appointed and may be the most influential conservative justice of the latter 20th century with Rehnquist. He is also a brilliant writer and has written some of the more poignant decisions of the last quarter century. A quarter century, hundreds of majority decisions penned, and his status as a conservative icon in the Courts make him a legal titan.
Quote from: FlaBoy on December 14, 2015, 03:15:41 PM
...he has written the current law of the land.
Like I said, judicial activism. Ironic, isn't it?
Quote from: finehoe on December 14, 2015, 12:33:42 PM
Quote from: FlaBoy on December 14, 2015, 09:18:27 AM
Finehoe, he was using a supplemental brief (briefs filed by third parties in favor or against a party once the case reaches appellate courts) and one of the main arguments had to do with the extremely high rate of drop outs in African-American students once they reach universities. The African-American dropout rate is much higher overall but having worked at a large research university at one point, there is always a real worry about the level of attrition among minority students which is even higher at the large research universities.
Why should this even matter to a justice who professes to be an originalist? By his own writings and speeches, Scalia says that interpretation of the Constitution should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. His only be concern (according to him) should be 'does the Constitution allow the affirmative action admissions policy of UT.' Dropout rates and attrition statistics are irrelevant to the constitutional question.
Again, according to his own self-professed views, he isn't there to judge if a law has good, bad or unintended consequences, but only to judge if it is permitted by the Constitution.
That is an oversimplification of Scalia's stance as an originalist. It is probably more in line with Clarence Thomas. Scalia is a big believer in Stare Decisis. He also believes in grey area for issues with no express language in the Constitution. Even in issues concerning gun rights or drug use, he also has a tendency to focus on order and what is necessary for governance. He is the one that said that the Constitution gives every person the right to own a gun if they wish, but has the power to regulate gun ownership in anything over and above that finite right. He simply attempts to look at history as a guide and not simply look at issues with chronological snobbery of the present age, but so do most of the justices when seeking a reason to find a certain way, just with not quite the same precise nature.
Quote from: stephendare on December 14, 2015, 04:41:05 PM
So I suppose we should understand that you don't have any clue why justice Scalia is described as a legal Titan within conservative circles? Much less why you yourself describe him as such?
What would qualify one to be considered a "legal titan" in your eyes? Or are you simply implying about the rights view of him?
I'm pretty sure in order to be legally considered a Titan you would have to provide substantive proof that you are the child or grandchild of Gaia and Uranus.
When comparing to other supreme court justices, I would agree that only conservatives would consider him a "titan" of the supreme court. I was reading the thread that he was being refereed to as a titan of the legal field, which is hard to argue against.
Scalia *is* a titan, it's patently absurd to claim otherwise. You may think him wrong; that has nothing to do with the assessment.
And the question (unsurprisingly) isn't as framed -- no one, let alone Scalia, is saying "good" schools are too hard for black students. The point is that engaging in a form of affirmative action that allows for wide differences in standard achievement from a significant cadre of minority students generates consequences that could have been (and were) logically anticipated. Thomas Sowell has a good, plain column on it today:
http://www.nationalreview.com/article/428491/justice-scalia-affirmative-action-minority-students
Well-intentioned white people (who often operate from their own sense of superiority while decrying that found in others) have wreaked havoc on, and within, the black community. Many, many alumni of Florida A&M will (in their more honest moments) admit this. African American academic achievement (or the lack thereof) is a complicated discussion, one certainly involving significantly more than aptitude questions. A not-insignificant number of black kids are much more prepared to deal with challenging academics but score significantly lower than black peers who are remarkably UNPREPARED for the real rigors of a college classroom. One is (from my very biased experience) much more able to make blanket "success" assessments with white students based on their standardized scores than one is able to do with black students.
One thing is for certain: the discussion on this subject is neither aided nor advanced in the slightest by crazy caricatures of Justice Scalia, especially when he has both logic and practical experience on his side.
Quotethe discussion on this subject is neither aided nor advanced in the slightest by crazy caricatures of Justice Scalia
That will not stop the smear campaign...
Quote from: stephendare on December 15, 2015, 09:56:35 AM
Quote from: FlaBoy on December 15, 2015, 12:34:38 AM
Quote from: stephendare on December 14, 2015, 10:43:41 PM
Not even in the top 1000
Agree to disagree :)
I can see you disagreeing with him not being in the top 1000. But seriously top 10 legal minds of all times? Like more than Hammurabi, Moses, Lycurgus, Solon, Octavian (Augustus Caeser) Justinian, St Paul, St. Augustine, William Blackstone, The Framers of the Constitution, Napoleon Bonaparte,
Scalia deserves a place in the top 10 because he doesn't like abortion, says racy things about the blacks, and is conservative? Thats a pretty low bar, don't you think?
Perhaps this tells more about your world perspective than anything useful about the status of legal minds throughout history?
I was thinking more the American judiciary when I made that statement. Comparing the American judiciary to Moses or Hammurabi is apples to oranges. Blackstone is definitely the most influential of the Common Law era (which continues today). The Church influenced so much of the Common Law that of course St. Paul may be the most influential of all time. However, again, that is hard to compare to American judiciary. Within the American judiciary, you most likely have Marshall, Story, Holmes, Taney, Brandeis, Warren, Black, Jackson, Cardozo and most certainly Rehnquist. Learned Hand would get attention and the legal community loves Posner's formulas in recent decades. I think Justice Kennedy is making a run at one of the most influential of the past quarter century due to the importance of his decisions, although underwhelming in his legal frameworks and paradigms at points.
The Court is really divided up into Four eras: 1) Foundational Era from the Court's Beginning to post Civil War - this era created the precedence of Judicial Review and Federal Supremacy. 2) Industrial/Conservative Court Era - (1870) Post Civil War Pro-Business Courts that limited Federal Power up until Court Packing proposed. 3) New Deal/Court Packing Era (1937 to 1986) - The Conservative Supreme Court's moderates were swayed out of self preservation to stop striking down New Deal plans which lead to expansive federal powers of commerce clause, then Warren and Burger Courts with new fundamental rights/substantive due process paradigm. 4) Reagan Revolution/State's Right's Courts (1986 on) - Rehnquist and Scalia spearheaded move of the Court to limit expansive federal commerce clause power and empower state's rights paradigm.
The last is why most would put Rehnquist on the list, but Scalia's appointment to the bench which coincided with Rehnquist's Chief Justice tenure and the sheer number of decisions and influential dissents he has written would definitely put him in the Top 20 IMO of influential in the American judiciary. But again, agree to disagree.
Quote from: stephendare on December 14, 2015, 05:12:12 PM
Justices like John Marshall, Earl Warren, Louis Brandeis, Oliver Wendell Holmes all pop to mind.
These just popped to your mind?
Quote from: RattlerGator on December 15, 2015, 06:58:17 AM
The point is that engaging in a form of affirmative action that allows for wide differences in standard achievement from a significant cadre of minority students generates consequences that could have been (and were) logically anticipated.
Emphasis mine. Please elaborate on these consequences. We have evidence that standardized testing scores are biased, we also have evidence that different types of affirmative action have positive outcomes for those benefited. What we are lacking is any evidence that the specific affirmative action in this case leads to worse outcomes for those that benefit, which is the entire hypothesis of matching "theory."
Quote from: BridgeTroll on December 15, 2015, 07:14:12 AM
That will not stop the smear campaign...
The only ones being "smeared" are minority students at 'good' schools.
Quote from: stephendare on December 15, 2015, 04:16:17 PM
Quote from: FlaBoy on December 15, 2015, 10:43:24 AM
Quote from: stephendare on December 15, 2015, 09:56:35 AM
Quote from: FlaBoy on December 15, 2015, 12:34:38 AM
Quote from: stephendare on December 14, 2015, 10:43:41 PM
Not even in the top 1000
Agree to disagree :)
I can see you disagreeing with him not being in the top 1000. But seriously top 10 legal minds of all times? Like more than Hammurabi, Moses, Lycurgus, Solon, Octavian (Augustus Caeser) Justinian, St Paul, St. Augustine, William Blackstone, The Framers of the Constitution, Napoleon Bonaparte,
Scalia deserves a place in the top 10 because he doesn't like abortion, says racy things about the blacks, and is conservative? Thats a pretty low bar, don't you think?
Perhaps this tells more about your world perspective than anything useful about the status of legal minds throughout history?
I was thinking more the American judiciary when I made that statement. Comparing the American judiciary to Moses or Hammurabi is apples to oranges. Blackstone is definitely the most influential of the Common Law era (which continues today). The Church influenced so much of the Common Law that of course St. Paul may be the most influential of all time. However, again, that is hard to compare to American judiciary. Within the American judiciary, you most likely have Marshall, Story, Holmes, Taney, Brandeis, Warren, Black, Jackson, Cardozo and most certainly Rehnquist. Learned Hand would get attention and the legal community loves Posner's formulas in recent decades. I think Justice Kennedy is making a run at one of the most influential of the past quarter century due to the importance of his decisions, although underwhelming in his legal frameworks and paradigms at points.
The Court is really divided up into Four eras: 1) Foundational Era from the Court's Beginning to post Civil War - this era created the precedence of Judicial Review and Federal Supremacy. 2) Industrial/Conservative Court Era - (1870) Post Civil War Pro-Business Courts that limited Federal Power up until Court Packing proposed. 3) New Deal/Court Packing Era (1937 to 1986) - The Conservative Supreme Court's moderates were swayed out of self preservation to stop striking down New Deal plans which lead to expansive federal powers of commerce clause, then Warren and Burger Courts with new fundamental rights/substantive due process paradigm. 4) Reagan Revolution/State's Right's Courts (1986 on) - Rehnquist and Scalia spearheaded move of the Court to limit expansive federal commerce clause power and empower state's rights paradigm.
The last is why most would put Rehnquist on the list, but Scalia's appointment to the bench which coincided with Rehnquist's Chief Justice tenure and the sheer number of decisions and influential dissents he has written would definitely put him in the Top 20 IMO of influential in the American judiciary. But again, agree to disagree.
Well that would be a conservative's take on supreme court eras, I think.
I think more people would see it more similar to the following:
Quote1) Pre Marshall Court. (1792-1800) -- Really a formative couple of years as the Justices grappled with the newly created Court.
2) The Marshall Court (1800-1835) -- This Court was characterized by a moderately broad reading of the powers of the federal government and of the Court. Most famous for Marbury vs. Madison, McCulloch v. Maryland, and Barron v. City of Baltimore.
3) The Taney Court (1835-1865) -- This Court strictly construed enumerated powers. Most famous for the Dredd Scott case.
4) The Reconstruction Era (1865-1895) -- This era saw the Supreme Court strictly construed the newly enacted Civil War Amendments as granting few new powers to the Court or to Congress or placing many restrictions on the states. Most famous for the Slaughter House Cases, the Civil Rights Cases, Plessy v. Ferguson, Hurtado v. California.
5) The Lochner Era (1895-1937) -- This era saw the Supreme Court narrowly interpreting Congressional Powers while broadly interpreting the Fourteenth Amendment's due process clause to strike down many state laws regulating economic activities including minimum wage and maximum hours laws. As the name of the era notes, the most famous decision of this era was Lochner v. New York. There was some increased enforcement of the Bill of Rights against the states.
6) The New Deal Court (1937-1947) -- This era saw the repudiation of Lochner in a series of decisions. Part of this repudiation saw the rise of the current very broad view of national powers to enact legislation. While the Court noted the possibility of continued activism to enforce the Bill of Rights and the equal protections clause (most famously in the Carolene Products decision), there were only a handful of such cases in this era, mostly the Jehavah Witnesses Flag cases.
7) The Warren Court era (1947-1973) -- While this era is typically named after Chief Justice Earl Warren, the era actually began before his appointment and continued after his retirement. This case saw great activity in broadly interpreting the Constitution to prevent racial discrimination and to enforce the principles of the Bill of Rights. Cases from this era include Brown v. Board of Education, Gideon v. Wainwright, Miranda, Roe v. Wade, the new Civil Rights Cases, Lemon, the Pentagon Papers, etc.
8) Post-Warren Court (1973-present) -- The general trend since 1973 has been to nibble at the decisions of the Warren Court era. There have been no major decisions overturned (except Furman). Instead, the general tendency as been decisions to narrow the reach of the broad decisions of the Warren Court era.
I can't think of a single legal reason to label anything since Warren as anything in particular. Perhaps the Roberts Court for the expansion of civil rights? But even then not really a new legal approach or anything distinctive.
Others might describe the Court within three main eras:
QuoteThe first era is institutional definition which lasted from 1790-1865, the goal during this era was to define and strengthen the American Government. The main actor in this era was John Marshall.
The second era is commerce and social welfare which lasted from 1865-1937, this era marks the development of legal, political, and social problems that occurred due to the urbanization that our nation was undergoing.
The third era is civil rights and liberties which took place from 1937 to the 1990's. This era focused on individuals rights and the way the constitution is interpreted by individuals.
I think this broader definition is accurate, but for the purposes of this discussion, I think the former listing is more accurate.
Post Warren has been an interesting mishmash of undercutting the legal theories of the Warren Court, followed by validation of the same theories. For example, the arguments underlying Civil Rights protections being extended to LGBT people, following the opinions of the court on Affirmative Action. Whilst the specific laws emanating from the civil rights era might be being curtailed or modified, they are still in the process of being expanded to new American generations.
Nothing from the Rehnquist Court has resulted in any such application of new (or even renewal of old) legal assumptions. Again, his chief attribute that makes him a hero to conservatives seems to have been the political and religious preferences in his personal life. Not his real impact or even his longterm effectiveness as a judicial leader.
I think Roberts may have the possibility of being considered an important Chief Justice simply because of the thorny new territory being carved into legal theories arising from our technology.
He is a young man and his court will hear the arguments on the meaning of sentience, non human personhood, genomic sequencing as property rights, and a myriad of other issues that have literally never been important in the consideration of legal theory. His Court will deal the ground breaking opinions on previously unheard of legal issues.
But Rehnquist? Scalia?
meh.
Well, I was just regurgitating what my professor of Constitutional law told my old Con law class. My professor, who I can promise you was far far from conservative, and who also wrote our casebook, divided the eras up as I displayed. All you really did was subdivide eras into some more detail but that's fine. Anyhow, again, agree to disagree but SCOTUS has definitely limited the power of the federal government in the past 30 years, when it only helped it expand in the previous 50 years.
Quote from: finehoe on December 15, 2015, 11:48:31 AM
Quote from: BridgeTroll on December 15, 2015, 07:14:12 AM
That will not stop the smear campaign...
The only ones being "smeared" are minority students at 'good' schools.
http://www.realclearpolitics.com/articles/2015/12/15/attacking_the_truth_129041.html
QuoteAttacking the Truth
By Thomas Sowell
December 15, 2015
Attacking the Truth
Among the many sad signs of our time are the current political and media attacks on Supreme Court Justice Antonin Scalia, for speaking the plain truth on a subject where lies have been the norm for years.
The case before the High Court is whether the use of race as a basis for admitting students to the University of Texas at Austin is a violation of the 14th Amendment's requirement for government institutions to provide "equal protection of the laws" to all.
Affirmative action is supposed to be a benefit to black and other minority students admitted with lower academic qualifications than some white students who are rejected. But Justice Scalia questioned whether being admitted to an institution geared to students with higher-powered academic records was a real benefit.
Despite much media spin, the issue is not whether blacks in general should be admitted to higher ranked or lower ranked institutions. The issue is whether a given black student, with given academic qualifications, should be admitted to a college or university where he would not be admitted if he were white.
Much empirical research over the years has confirmed Justice Scalia's concern that admitting black students to institutions for which their academic preparation is not sufficient can be making them worse off instead of better off.
I became painfully aware of this problem more than 40 years ago, when I was teaching at Cornell University, and discovered that half the black students there were on some form of academic probation.
These students were not stupid or uneducable. On the contrary, the average black student at Cornell at that time scored at the 75th percentile on scholastic tests. Their academic qualifications were better than those of three-quarters of all American students who took those tests.
Why were they in trouble at Cornell, then? Because the average Cornell student in the liberal arts college at that time scored at the 99th percentile. The classes taught there -- including mine -- moved at a speed geared to the verbal and mathematical level of the top one percent of American students.
The average white student would have been wiped out at Cornell. But the average white student was unlikely to be admitted to Cornell, in the first place. Nor was a white student who scored at the 75th percentile.
That was a "favor" reserved for black students. This "favor" turned black students who would have been successful at most American colleges and universities into failures at Cornell.
None of this was peculiar to Cornell. Black students who scored at the 90th percentile in math had serious academic problems trying to keep up at M.I.T., where other students scored somewhere within the top 99th percentile.
Nearly one-fourth of these black students with stellar qualifications in math failed to graduate from M.I.T., and those who did graduate were concentrated in the bottom tenth of the class.
There were other fine engineering schools around the country where those same students could have learned more, when taught at a normal pace, rather than at a breakneck speed geared to students with extremely rare abilities in math.
Justice Scalia was not talking about sending black students to substandard colleges and universities to get an inferior education. You may in fact get a much better education at an institution that teaches at a pace that you can handle and master. In later life, no one is going to care how fast you learned something, so long as you know it.
Mismatching students with educational institutions is a formula for needless failures. The book "Mismatch," by Sander and Taylor is a first-rate study of the hard facts. It shows, for example, that the academic performances of black and Hispanic students rose substantially after affirmative action admissions policies were banned in the University of California system.
Instead of failing at Berkeley or UCLA, these minority students were now graduating from other campuses in the University of California system. They were graduating at a higher rate, with higher grades, and now more often in challenging fields like math, science and technology.
Do the facts not matter to those who are denouncing Justice Scalia? Does the actual fate of minority students not matter to the left, as much as their symbolic presence on a campus?
Thomas Sowell? The guy who's made a career out of denouncing affirmative action? He's certainly an unbiased source. LOL.
Quote from: finehoe on December 16, 2015, 12:45:21 PM
Thomas Sowell? The guy who's made a career out of denouncing affirmative action? He's certainly an unbiased source. LOL.
Rofl... Yeah... I mean what would a prof at Cornell know... okay... how bout one of your Huffpo guys...
http://www.huffingtonpost.com/geoffrey-r-stone/justice-scalia-affirmativ_b_8815062.html
QuoteGeoffrey R. Stone
Edward H. Levi Distinguished Service Professor of Law, University of Chicago
Justice Scalia, Affirmative Action and the Perils of Oral Argument
Posted: 12/15/2015 8:34 pm EST Updated: 12/15/2015 8:59 pm EST
Ever since the oral argument last week in the Supreme Court in Fisher v. University of Texas, which involves the constitutionality of the University of Texas' affirmative action program, Justice Antonin Scalia has been castigated and excoriated by commentators, mostly on the left, for asking the attorney for the University of Texas about the so-called "mismatch" objection to affirmative action. In Justice Scalia's words: "There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less -- a slower-track school where they do well."
Although I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate. As is often the case, Justice Scalia might have helped himself by framing his comment in a more sensitive manner. But the plain and simple fact is that his question gave the attorney for the University of Texas an opportunity to respond to one of the central arguments made against the constitutionality of affirmative action.
The "mismatch" argument runs more or less as follows. Colleges and universities generally admit students based on their academic achievements and potential, as reflected in their standardized test scores, their high school GPAs, and the nature of the courses they took in high school. These criteria have been shown to be reasonably good at predicting academic success at the college level.
When a college employs affirmative action, it typically admits some students who would not otherwise be admitted based on their academic credentials because their presence would add diversity to the institution and to the student body. Predictably, those students generally do less well academically in college, on average, than most students who are admitted solely on the basis of academic potential. This phenomenon may be exacerbated by a variety of factors, including a sometimes less than congenial or supportive atmosphere for minority students on campus, but it is a perfectly predictable consequence of admitting students, who would not otherwise be admitted on the basis of academic potential, whether because of affirmative action, because they are good football players, because they play the oboe, or because they are the children of potentially generous donors.
In the affirmative action context, as in the other settings, this raises the question whether the college is exploiting the students for its own ends -- to achieve diversity -- at the expense of the students' own best interests. Put simply, is a student better off graduating in, say, the bottom 20 percent of a first tier college or in the top 20 percent of a second tier college?
This is not an easy question. If we were discussing your own kid, what would you think?
As a former Dean and Provost at the University of Chicago, I have had this conversation many times over the years with friends and former students who want advice about how to advise their own children. Most often, I've had this conversation with wealthy individuals who know they can get their kids into a top tier college, which hopes someday to receive a large gift in appreciation, but who know from their kids' SAT scores and high school records that, purely on the basis of academic potential, their kids wouldn't get into a top tier college.
What they worry about is the impact on their kids of "being in over their heads." They worry in part about how good an education their kids will actually get if they're in over their heads academically, and they worry in part about the effect of a mediocre college performance on their kids' sense of self-confidence. As highly successful people themselves, they understand the importance of self-confidence. They worry that, if their kids barely get by in college, they will have their self-confidence beaten out of them. It's often a tough call.
This is essentially what Justice Scalia was asking about. A number of social scientists have studied the "mismatch" theory and compared the experience of minority students who are the beneficiaries of affirmative action with those who have not benefited from affirmative action. That is, the idea is to compare the experiences of college students with more or less equivalent academic potential, some of whom attend first tier and some of whom attend second tier colleges.
The results of these studies suggest that the concern that the intended beneficiaries of affirmative action are actually being harmed rather than helped is largely unfounded. In comparing these two groups, the data suggest that the students who attend the first tier schools do less well in terms of academic performance in college, but that they are as likely to graduate, as likely to have a satisfactory college experience, and as likely -- indeed, more likely -- to get good jobs upon graduation than their peers at second tier schools.
But, of course, there are also social scientists who disagree. Although the weight of authority at the moment appears to be on the side of those who find that affirmative action does, indeed, benefit its intended beneficiaries, the matter is still open to debate. Moreover, even if the matter were resolved with respect to the average student entering a college in an affirmative action program, this does not mean that every such student benefits from the experience. Depending on the background, self-confidence, and makeup of the student, the experience can either be a good one, or a not so good one. Indeed, that's precisely what my rich friends worry about with respect to their own kids.
Now, in my own view, none of this has anything to do with the constitutionality of affirmative action. Rather, these are interesting details that should be taken into account by individual students and their families in making individual decisions for themselves. But my view of affirmative action, unfortunately, is not the view of the Supreme Court. In the Supreme Court's view, it is unconstitutional for public institutions of higher education to take race into account in making admissions decisions unless they have a compelling interest for doing so. Even the possibility that the mismatch theory is correct, at least for some students, might be sufficient, under that standard, to invalidate affirmative action programs. That is bad constitutional law, but as long as it is the law of the land it is perfectly appropriate and sensible for a justice to ask about this.
It is time that we stopped condemning each other for asking hard questions, however much we might not like them.
QuoteAlthough I often disagree with Justice Scalia, and although I emphatically disagree with him about the constitutionality of affirmative action, the outrage and condemnation sparked by this comment is completely unwarranted. Justice Scalia's comment, which asked about the merits of an argument frequently made against affirmative action, and which was made specifically in briefs before the Supreme Court in this very case, was perfectly appropriate.
Quote from: stephendare on December 16, 2015, 03:38:41 PM
Quote from: FlaBoy on December 16, 2015, 01:23:23 PM
That article above hits it right on the head. It is what I was trying to say at the beginning of this discussion. It was oral arguments and Scalia was addressing an issue in an amicus brief. He did what ALL appellate judges do and probed the attorney using the other side's arguments. He could have been more eloquent and distinguished his views from the argument, but I think the attorney, who also read those briefs, understood what Scalia was doing, even if Al Sharpton and the twitterverse did not. Really level headed and well done article.
If the article above hits it right on the head, then finehoe pointed out to you within the first few exchanges that the so called 'mismatch theory' is largely unfounded.
From the article you just cited as authoritatively stating the case:
QuoteThe results of these studies suggest that the concern that the intended beneficiaries of affirmative action are actually being harmed rather than helped is largely unfounded. In comparing these two groups, the data suggest that the students who attend the first tier schools do less well in terms of academic performance in college, but that they are as likely to graduate, as likely to have a satisfactory college experience, and as likely -- indeed, more likely -- to get good jobs upon graduation than their peers at second tier schools.
Which circles us back around to the problem of a sitting supreme court justice using an unfounded race theory to discuss affirmative action.
That's fine. If the argument is raised, it is the Judge or Justice's job to get the counterargument from the Attorney during oral arguments. It is his or her job to persuade the Court of those facts.
Quote from: FlaBoy on December 16, 2015, 04:10:45 PM
That's fine. If the argument is raised, it is the Judge or Justice's job to get the counterargument from the Attorney during oral arguments. It is his or her job to persuade the Court of those facts.
But nobody raised it. Read for yourself: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-981_4h25.pdf
Perhaps somebody did raise it in a brief (of which there are almost 100, so why is that one singled out), but no one raised it in the oral arguments prior to Scalia bringing it up.