‘Puter finally found some time to read the Supreme Court’s Fisher v. University of Texas at Austin decision. In its decision, a nearly unanimous court stated the lower appellate court (United States Court of Appeals for the Fifth Circuit) failed to apply the correct standard of review to its review of the University of Texas’ affirmative action admissions policy. Therefore, the Court vacated the lower court’s decision and remanded it to that court for action consistent with the Court’s decision.
‘Puter has the following quick, pithy thoughts on the Fisher decision, as he waits with bated breath for the Court’s remaining decisions to issue, which may occur as early as this morning at 10:00 AM.
· Justice Kennedy’s majority opinion was joined in full by Chief Justice Roberts and Justices Scalia, Thomas, Breyer, Alito and Sotomayor. The Court’s decision should be non-controversial, as it was joined by profoundly conservative Justices and proudly liberal Justices alike.
· The Fisher opinion is conservative. The Court decided the fewest issues necessary to reach a result. That is, rather than reach the issue of affirmative action itself (which arguably was not properly before the Court), the Court determined only that the lower court did not properly apply the appropriate standard of review, strict scrutiny.
· Liberals incorrectly claim the Fisher decision is a vindication of affirmative action in college admissions. Liberals are wrong for two main reasons.
o First, as noted above, the Court avoided reaching the ultimate issue of whether government can use race as a factor in college admissions determinations to the detriment of others.
o Second, at least two Justices (Thomas and Scalia) strongly indicated that when the case returns to the Court on appeal, they will vote to hold affirmative action programs as unconstitutional. Chief Justice Roberts has already said “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Justice Alito is likely a fourth vote to overturn affirmative action. All the Fisher decision did was to delay affirmative action’s day of reckoning.
· Conservatives should not be disappointed with the Fisherdecision. Sure, it would’ve been great to have the Court drive a stake through the heart of affirmative action at long last. But in refusing to do so, the Court has shown judicial restraint on an issue near and dear to liberal hearts. Expect Chief Justice Roberts to use this as a cudgel on the Court’s liberal wing the next time it wants to issue an overreaching decision on climate change, disparate impact analysis or gay rights.
· Even if affirmative action should survive its next encounter with the Court, the Fisher decision has severely limited its usefulness. The Court insisted that colleges are entitled to zero deference as to the necessity of the means used to achieve racial diversity. In the Court’s words, “Race may not be considered unless the admission process can withstand strict scrutiny.”
· Here’s a list of money quotes to throw at your hippie liberal friends crowing about how totally awesome affirmative action is, and how it’s now, like, totally even more awesomer because the Supreme court, like, um, totally said so. Read them a few of these quotes, then ask your addlepated interlocutor what makes her (it’s usually a her) think a current affirmative action based admissions program can withstand this standard of review.
o “Nothing … signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.”
o “To be narrowly tailored, a race-conscious admission program cannot use a quota system.”
o “Strict scrutiny requires the university to demonstrate with clarity that its ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary… to the accomplishment of its purpose.’” (emphasis added)
o “[J]udicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.”
o “[G]overnment … bears the burden to prove ‘that the reasons for any [racial] classification [are] clearly legitimate.”
o “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach … could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race.” (internal quotations omitted)
o “Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that ‘the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.’”
o ““[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable … . While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.”
· The Court in Fisher warned lower courts with admirable force and clarity that the standard for judicial review of racial discrimination does not vary if the wronged party is white. Liberal do-gooders no longer can hide behind the wink-and-a-nod understanding that racial discrimination is fine so long as it only hurts Whitey T. Mann and his racist, misogynist, cracker progeny.
· Justice Ginsburg is a laughingstock and no longer should be permitted to take part in Court decisions. She is either senile or corrupt based on her dissent to Fisher’smajority. Congress should impeach Justice Ginsburg, starting yesterday. More on this later.
That’s all ‘Puter’s got time for at the moment. He’s off to finish updating a servicing agreement and to hang out at SCOTUSblog.com to await today’s Court decisions.
Always right, unless he isn’t, the infallible Ghettoputer F. X. Gormogons claims to be an in-law of the Volgi, although no one really believes this.
’Puter carefully follows economic and financial trends, legal affairs, and serves as the Gormogons’ financial and legal advisor. He successfully defended us against a lawsuit from a liquor distributor worth hundreds of thousands of dollars in unpaid deliveries of bootleg shandies.
The Geep has an IQ so high it is untestable and attempts to measure it have resulted in dangerously unstable results as well as injuries to researchers. Coincidentally, he publishes intelligence tests as a side gig.
His sarcasm is so highly developed it borders on the psychic, and he is often able to insult a person even before meeting them. ’Puter enjoys hunting small game with 000 slugs and punt guns, correcting homilies in real time at Mass, and undermining unions. ’Puter likes to wear a hockey mask and carry an axe into public campgrounds, where he bursts into people’s tents and screams. As you might expect, he has been shot several times but remains completely undeterred.
He assures us that his obsessive fawning over news stories involving women teachers sleeping with young students is not Freudian in any way, although he admits something similar once happened to him. Uniquely, ’Puter is unable to speak, read, or write Russian, but he is able to sing it fluently.
Geep joined the order in the mid-1980s. He arrived at the Castle door with dozens of steamer trunks and an inarticulate hissing creature of astonishingly low intelligence he calls “Sleestak.” Ghettoputer appears to make his wishes known to Sleestak, although no one is sure whether this is the result of complex sign language, expert body posture reading, or simply beating Sleestak with a rubber mallet.
‘Puter suggests the Czar suck it.