Law is always a strange meeting place between philosophy and reality

There was a Supreme Court case on Tuesday the 15th, Schuette v. Coalition to Defend Affirmative Action, yet another in defense of Affirmative Action. This one is particularly convoluted and is probably best summarized by Ilya Somin and Lyle Denniston.

Basically, the voters of Michigan passed a state constitutional amendment by 58-42% banning discrimination or preferential treatment on the basis of "race, sex, color, ethnicity or national origin." It is anticipated that this will have the most immediate impact on Universities. That has put the ACLU and other parties in the case in the peculiar, to my mind, position of having to argue that it should be permissible for the government to discriminate and provide preferential treatment on the basis of race, sex, color, ethnicity or national origin. Law is always a strange meeting place between philosophy and reality.

What caught my eye in the reports was an exchange between one of the lead attorneys and the Justices which is the first time I have seen academic hothouse ideology front and center in a national forum. Specifically, there has long been a popular parlance in the groves of academe regarding the inherently racist nature of America (government and culture) and the pervasive influence of "the Patrimony." Both of these get short handed into references to privilege; white privilege and male privilege specifically. Worst of all, white male privilege.

In many ways, this particular world view, as far as I can tell, has been treated as an eccentric child. On the rare occasions that it is rolled out, polite responsible company avert their eyes, talk louder, and do their best to ignore the antics. The embarrassment for people so steeped in this world view is that it is so patently shallow and unsupported by reality. The struggles to make the ideology fit even the most rudimentary data are a herculean game of twister. A few writers such as the economist Thomas Sowell, seemingly as a form of civic duty, keeps knocking down the arguments but facts are of little consequence where creed and belief are involved.

But this is the first time I have seen the academic vision of privilege out in public in a reputable forum, in this instance, before the justices of the Supreme Court. Shanta Driver was one of the lead attorneys for those seeking to overturn the Michigan amendment outlawing discrimination.

Driver: We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that's expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case.

Scalia: My goodness, I thought we've--we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only--only the blacks. But I thought we rejected that. You--you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

Driver: I think it is--it's a measure that's an antidiscrimination measure.

Scalia: Right.

Driver: And it's a measure in which the question of discrimination is determined not just by--by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.

Scalia: And unless that exists, the 14th Amendment is not violated; is that right? So if you have a banding together of various minority groups who discriminate against--against whites, that's okay?

Driver: I think that--

Scalia: Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities? Any case?

Driver: No case of yours.

I don't think it was a particularly successful outing.