A junior judge takes a stupid decision

Just in case I couldn’t thing of a good subject on which to write today, my good friend Robert Stacy McCain gave me some direction!

Judge dismisses gun charge against convicted felon; ruled as unconstitutional

by Natalia Martinez | The Ides of March, 2024 | 11:47 AM EDT

LOUISVILLE, Ky. (WAVE) – Prohibiting a convicted felon from possessing a gun is unconstitutional, according to a Jefferson County Circuit Court Judge’s ruling.

Judge Melissa Logan Bellows filed the order this week, dismissing the possession charge against a convicted felon and persistent felony offender, Jecory Frazier.

The motion to dismiss was filed by Louisville Attorney Rob Eggert in October on behalf of his client. Eggert claimed the state’s law does not trump the Second Amendment. Bellows agreed, making the first ruling of its kind in Jefferson County.

Trisha Lister, an attorney at Eggert’s office, wrote the motion.

She believes Bellows’ opinion was well-written.

She told WAVE News Troubleshooters the Second Amendment does not single out convicted felons. She said the charge has been not been equally enforced and is used as a way to keep people of color from having guns. Lister stated over 70% of those prosecuted on that standalone charge are minorities.

And there we have it: the attorneys for the defendant were concerned that “over 70% of those prosecuted on that standalone charge are minorities,” so naturally, the lawyers assumed that such a statistic was generated by racism rather than the possibility that “over 70% of those prosecuted on that standalone charge are minorities” because over 70% of the violations of KRS §527.040 were committed by minorities. That statistic is not addressed in Judge Bellows decision.

The .pdf file of Judge Bellows decision is here, and it is fairly brief, only eight pages.

The Judge based her ruling on District of Columbia v. Heller, 554 U.S. 570 (2008), which established that the Second Amendment’s guarantee of the right to keep and bear arms is an individual right, not one restricted to the militia, and New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), which set the standard that restrictions on our Second Amendment rights must have a significant history based on the original understandings of our rights, rather than something novel.

The Court held that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct” and the Government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

The Judge then launches into an argument I find strained:

In Heller, the Court stated that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons . . .” 554 U.S. at 627. The majority opinion in Bruen makes no mention of Heller’s reference to felon in possession laws. Instead, the admonition appeared in a concurring opinion. 142 S. Ct. 2162 (Kavanaugh, J., concurring).

A curious argument, given that Heller specifically stated that felons could be barred from owning weapons, and Bruen did not overturn that part, because Bruen made no mention of that particular part, the Court must not have meant for it to continue. This alone is a point of contention that I suspect the Commonwealth will appeal.

But, to me, the oddest part of the Judge’s argument is that, other than one sentence in which she noted that the Fourteenth Amendment was ratified in 1868, she ignores it completely. Perhaps the Commonwealth’s Attorney for Jefferson County did not bring it up, even though it is through the Fourteenth Amendment that the Court ‘incorporated’ the individual right to keep and bear arms to the states, in McDonald v. City of Chicago, 561 U.S. 742 (2010). The Fourteenth Amendment specifically states, in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Emphasis mine.

It’s simple: the Fourteenth Amendment specifically allows the states to deprive a person of his constitutional rights if due process of law is followed, and the felony convictions of Jacory Frazier were obtained through the due process of law.

Let me state clearly here: I am not an attorney!

So, who is Judge Bellows? She was elected Judge of the Kentucky Circuit Court for Circuit 30, division 7, in 2022, in a non-partisan race, to an eight-year term. People unfamiliar with the Bluegrass State’s judicial system might jump to the conclusion that she was appointed by either Governor Andy Beshear (D-KY) or the evil President Trump, but neither is the case.

Defense Attorneys make all kinds of outlandish arguments to try to get their clients off, and in most cases, those arguments don’t work, even though judges do have to take such arguments seriously. In this case, a junior judge took an outlandish argument very seriously, and actually agreed with it.

In which Corey Jackson tells us that non-white ethnic groups just aren’t equal to white Americans

Assemblyman Corey Jackson, from his official biography page, and is a public document.

California state Assemblyman Corey A Jackson is not someone you would ordinarily think believed that non-white persons simply aren’t equal with whites, but darned if that isn’t exactly what he believed. Elected in 2022 to represent the 60th Assembly District, his main concern seems to be race. He was aghast, appalled, and definitely clutching his pearls when the Supreme Court ruled that yes, discrimination on the basis of race was unconstitutional in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, as well as the 2020 rejection of the Pyrite State’s Proposition 16, by the huge margin of 57.2% to 42.8%, which sought to overturn the 1996 state constitutional amendment which banned discrimination on the basis of race, sex, national origin and ethnicity as a factor in public university admissions and other state programs.

Think about that: in the ‘bluest’ of our blue states, an attempt to reinstate racial preferences, in which the proponents outspent the opposition by roughly 14-to-1, the attempt was defeated by a landslide margin. Continue reading

“The first thing we do, let’s kill all the lawyers.”

In the Bard’s play, Henry VI (Part 2), Dick the Butcher is cast as a large and powerful man, second-in-command to the anarchist Jack Cade, in the rebellion against His Majesty the King. Dick’s most famous line is, “The first thing we do, let’s kill all the lawyers.” I am no anarchist, but one thing is certainly true: lawyers f(ornicate) up just about everything!

The Second Amendment to the Constitution of the United States ought to be easy to understand:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

But, of course, there are always those, including those who are themselves guarded by armed men, who do not want Other People to be allowed to keep and bear arms. And thus we’ve had the Second Amendment violated for more than 200 hundred years, as various states passed laws to restrict Americans from owning firearms. In United States v Cruikshank, 92 U.S. 542 (1876), the Supreme Court held that the Second Amendment only prohibited the federal government from banning private ownership of firearms:

The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.

Under the Cruikshank decision, states, counties, and municipalities could ban the private ownership of firearms. It took until District of Columbia v Heller, 554 U.S. 570 (2008), for the Court to hold that the right to keep and bear arms is an individual right, and McDonald v. City of Chicago, 561 U.S. 742 (2010) incorporated the Heller decision to apply to the states. A full 219 years passed between the ratification of the Second Amendment and the Supreme Court finally applying it to the states.

From The Wall Street Journal:

Why America’s Gun Laws Are in Chaos

Judges clash over history a year after Supreme Court upended how courts decide Second Amendment cases—‘the whole thing puzzles me’

by David Gershman | Tuesday, August 1, 2023 | 5:30 AM EDT

The Supreme Court last summer sought to clarify its expansive reading of the Second Amendment. Instead, it set off chaos.

The decision in New York State Rifle and Pistol Association v. Bruen decreed that gun-control laws of today must have a clear forerunner in weapons regulations around the time of the nation’s infancy, regardless of the modern public-safety rationale behind them.

The Journal’s paywall begins to fad out te text at this point, but you can read the entire thing for free here.

The result: Hundreds of gun cases litigated in recent months have become a free-for-all, with lower courts conflicted or confounded about how and where to draw limits on gun rights.

“There’s all this picking and choosing of historical evidence. ‘This is too early. This is too late. Too small, too big,’” Judge Gerard Lynch of the Second U.S. Circuit Court of Appeals said during a recent argument about a new law in New York that prohibits guns in sensitive places like parks, museums and bars. “The whole thing puzzles me.”

Associate Justice Clarence Thomas is a brilliant jurist, but somehow, some way, he couldn’t just leave the Second Amendment where it was: “The right of the people to keep and bear arms shall not be infringed.” Instead, he created a standard under which the right of the people to keep and bear arms could be infringed, if only we had started infringing upon them early enough. This is what happens when lawyers are involved!

Of course, other lawyers, our federal, state, county, and municipal lawmakers were just never satisfied with a simple statement of rights!

In that case, the right of licensed handgun owners to carry weapons into bars and theaters could hinge on 19th-century statutes that barred drunks from carrying firearms, and outlawed guns and butcher knives in social parties attended by ladies. A case decided last fall held that the federal ban on guns with obliterated serial numbers was unconstitutional because unmarked guns were perfectly legal in the 18th century.

The Bruen case launched the upheaval. In that decision, the Supreme Court said New York couldn’t require concealed-carry applicants to prove a dire need for self-protection. The 6-3 opinion, written by Justice Clarence Thomas and endorsed by five fellow conservatives, said the restrictive licensing rules violated the Second Amendment right of ordinary, law-abiding citizens to carry handguns for self-defense.

The opinion rejected the practice of lower courts considering the public-safety intentions of gun laws being challenged. The courts often found that the government’s goal of curbing gun crimes and mass shootings outweighed the liberty interests of gun owners.

That practice watered down gun rights, the opinion said. Instead, Thomas wrote, to pass constitutional muster, gun restrictions within the scope of the Second Amendment must be deeply rooted in historical precedent. Governments defending them bear the burden of showing that their laws are similar, or at least analogous, to firearm regulations widely enforced around the time of Second Amendment’s ratification in 1791.

Dion Green spoke to other gun-violence survivors at the Supreme Court ahead of the Bruen case oral arguments in 2021. PHOTO: LEIGH VOGEL/GETTY IMAGES

It was at that point that the Journal included a photo. The speaker shown, Dion Green, has a placard that claims, “Gun laws save lives.” That’s certainly what the left claim, but is it actually true?

As we have previously noted, gun laws are almost uniform across Pennsylvania, because state law does not allow local governments to impose legislation on firearms which is stricter than the state law. Yet Philadelphia, with just over 12% of the Keystone State’s population, has suffered slightly over half of the murders in the Commonwealth. If “gun laws save lives,” as the left claim, shouldn’t we see homicide rates relatively even across the state?

There is a lot more at the Journal original, much of it dealing with older laws being contemplated by today’s lawyers and judges, in their attempts to see if yet another gun control law passes constitutional muster. And this is the problem with Justice Thomas’ opinion: he added a standard, one very loosely defined and giving lower courts very little guidance, when the simplest standard is the words of the Second Amendment, “The right of the people to keep and bear arms shall not be infringed.”

Near the end of the article comes the point I found most important. U.S. District Judge Stephen McGlynn of East St. Louis, Ill., ruling against the state’s assault-weapons ban, said:

Can the senseless crimes of a relative few be so despicable to justify the infringement of the constitutional rights of law-abiding individuals in hopes that such crimes will then abate or, at least, not be as horrific? Likely no.

That’s the point the gun-grabbers can never seem to address: why would taking away the right of law-abiding Americans disarm criminals, who by definition, don’t obey the law?

Who knows? Perhaps Justice Thomas just could not get the rest of the majority to agree that the Second Amendment simply means what it says, that the right of the people to keep and bear arms should not, shall not, be infringed. In the end, a simple and clear statement of a basic constitutional right has been messed up by lawyers!

Odd question: will LGBTQ+ population decrease with end of Affirmative Action?

The Wall Street Journal is on top of the trends in business, as you’d expect, and reported that Chief Information Officers are worrying that employee ‘diversity’ — and how I’ve come to hate that word — will decrease following the Supreme Court’s  decision  in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, declaring what we all knew, that the equal protection clause in the 14th Amendment prohibited Affirmative Action using racial preferences in collegiate admissions.

CIOs Say Affirmative Action Ruling Could Set Back Progress in Tech Diversity

Executives are questioning what a landmark Supreme Court decision on college admissions means for diversity hiring efforts

by Belle Lin | Monday, July 17, 2023 | 7:00 AM EDT

Business technology leaders said that last month’s Supreme Court’s ruling that colleges can’t consider race in admissions policies could have a chilling effect on initiatives aimed at diversifying the information-technology workforce.

The court’s decision is likely to alter the pipeline of diverse graduates entering the job market, they said, and may introduce challenges to companies’ existing hiring and promotion practices.

By removing race from college admission considerations, the pool of tech talent entering the workforce may not only be less diverse, it could also be smaller if underrepresented minorities don’t see the field as a welcoming or viable option, those executive say.

There’s more at the original.

The Court’s decision applied to universities, public and private, that accept federal money, including in the form of student financial aid. However, as Chief Justice John Roberts noted in the Court’s opinion, roughly 60% of colleges and universities admit all applicants. If the pool of graduates from certain technical specialties from Ivy League colleges becomes less diverse — there’s that word again! — then corporations might look at graduates from Middle Tennessee State (Acceptance rate = 87.1%) or Eastern Kentucky (Acceptance rate = 98.3%) or Jacksonville State University of Alabama (Acceptance rate = 76.3%), Robert Stacy McCain’s alma mater. After all, Alissa Heinerscheid proved that being a Hahvahd graduate was no guarantee that stupid decisions wouldn’t be taken!

Then I saw these interesting paragraphs in another Journal article:

The elevation of victimhood over achievement has led many to misrepresent their racial and gender identities in pursuit of advantages in professional and academic positions. Students at selective colleges are identifying as non-heterosexual at rates several times higher than historic or national averages, though University of London political scientist Eric Kaufmann noted that there hasn’t been a corresponding increase in sexual behavior tied to those identities. I’ve heard of parents at elite private high schools using genetic testing services hoping to identify any ethnic heritage that would boost their children’s college applications and of young professionals falsely identifying as bisexual for a career boost.

Racial and gender quotas result in liberals’ willful hypocrisy and convoluted rationalizations when they are confronted with the reality that aptitudes, interests and effort aren’t always evenly distributed among their superficial and shifting politicized racial categories. Liberals have translated their calls for increased diversity into demands that colleges admit and employers hire black and Hispanic applicants in proportion to their group’s share of the U.S. population.

Wait, what? “Students at selective colleges are identifying as non-heterosexual at rates several times higher than historic or national averages” but “there hasn’t been a corresponding increase in sexual behavior tied to those identities”? From the linked report:

  • When we look at homosexual behavior, we find that it has grown much less rapidly than LGBT identification. Men and women under 30 who reported a sexual partner in the last five years dropped from around 96% exclusively heterosexual in the 1990s to 92% exclusively heterosexual in 2021. Whereas in 2008 attitudes and behavior were similar, by 2021 LGBT identification was running at twice the rate of LGBT sexual behavior.
  • The author provides a high-point estimate of an 11-point increase in LGBT identity between 2008 and 2021 among Americans under 30. Of that, around 4 points can be explained by an increase in same-sex behavior. The majority of the increase in LGBT identity can be traced to how those who only engage in heterosexual behavior describe themselves.
  • Very liberal ideology is associated with identifying as LGBT among those with heterosexual behavior, especially women. It seems that an underlying psychological disposition is inclining people with heterosexual behavior to identify both as LGBT and very liberal. The most liberal respondents have moved from 10-15% non-heterosexual identification in 2016 to 33% in 2021. Other ideological groups are more stable.

So, what do we have here? A significant increase in the number of younger people who are also mostly self-identified liberals? Does this mean that these people might be more open to take a walk on the wild side, but mostly haven’t yet, or is it some sort of ‘siding with the oppressed’ help, or could it possibly, just possibly, going the Elizabeth Warren/Rachel Dolezal route of ‘identifying’ with a particular minority for some real or perceived Affirmative Action benefit?

  • Very liberal ideology and LGBT identification are associated with anxiety and depression in young people. Very liberal young Americans are twice as likely as others to experience these problems. 27% of young Americans with anxiety or depression were LGBT in 2021. This relationship appears to have strengthened since 2010.
  • Among young people, mental health problems, liberal ideology, and LGBT identity are strongly correlated. Using factor analysis in two different studies shows that assuming one common variable between all three traits explains 40-50% of the variation.

LOL! I have long believed that “very liberal ideology” is indicative of some sort of mental problem, because, especially with the new #woke[1]From Wikipedia: Woke (/ˈwoʊk/) as a political term of African-American origin refers to a perceived awareness of issues concerning social justice and racial justice. It is derived from … Continue reading left, to be that far left requires a delusional mindset, ignoring the reality that is all around us. As we have previously reported, the areas in Philadelphia which were most seriously impacted by violent crime recently voted for a tougher-on-crime candidate, while the more ‘progressive’ candidates had far greater support in the wealthier, whiter — Philly is very internally segregated — areas.

You can’t pay attention to the news in Philadelphia without realizing that crime is a serious problem, but the anti-police, anti-incarceration leftist candidate won her votes in the areas experiencing far less crime.

There is, at least at the margins, some socialization concerning what is and is not acceptable when it comes to sex. For boys growing up, the idea of fellating another boy, or receiving anal intercourse from such, is strongly reinforced as something which is humiliating, completely unmanly, and just about every other negative connotation that can be put on it. It is at least arguable that forces pushing acceptance of male homosexuality can lessen the effects of the normal socialization, and perhaps some teenaged and twenty-something males might not be quite so averse to trying something, if the right situation arose. Porn has lessened the stigma against female homosexual liaisons.

But if actual homosexual activity is being reported at significantly lower rates than abnormal sexual identification — and let me be explicit here: anything other than strictly heterosexual identification is considered abnormal by me — then there must be some other incentive for people to identify as something other than normal.

  • College students majoring in the social sciences and humanities are about 10 points more LGBT than those in STEM. Meanwhile, 52% of students taking highly political majors such as race or gender studies identify as LGBT, compared to 25% among students overall.

Realistically, what can the incentive be other than politics or some perceived advantage to be gained? And if the perceived advantage would be the shortcuts offered by Affirmative Action, shouldn’t the elimination of Affirmative Action in collegiate admissions reduce the percentage of those claiming abnormal sexual orientations and identities?

References

References
1 From Wikipedia:

Woke (/ˈwk/) as a political term of African-American origin refers to a perceived awareness of issues concerning social justice and racial justice. It is derived from the African-American Vernacular English expression “stay woke“, whose grammatical aspect refers to a continuing awareness of these issues.
By the late 2010s, woke had been adopted as a more generic slang term broadly associated with left-wing politics and cultural issues (with the terms woke culture and woke politics also being used). It has been the subject of memes and ironic usage. Its widespread use since 2014 is a result of the Black Lives Matter movement.

I shall confess to sometimes “ironic usage” of the term. To put it bluntly, I think that the ‘woke’ are just boneheadedly stupid.

Theodore Johnson says the quiet part out loud

The scorn heaped on Americans of Asian descent by black Americans since the Supreme Court’s decision  in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, declaring what we all knew, that the equal protection clause in the 14th Amendment prohibited Affirmative Action using racial preferences. Promise Li wrote, in The Nation:

(W)e must be clear about one thing: Asian American anti–affirmative action activists have not been simply “used” by white activists and duped into this white supremacist policy. They are active, militant co-conspirators with white conservatives.

Why? The Supreme Court case was made by Americans of Asian descent, because they were being discriminated against by Harvard University and the University of North Carolina — the parties to the case, but the discrimination has been much, much wider — being held to admissions standards far higher than black applicants, and even white applicants. This was hardly novel at Hahvahd, where a 15% maximum admissions quota was placed on Jews in the 1920s. Jerome Karabel argued, in a Slate article published well before the Court’s decision was announced, that the two were not the same, but made a practical case that they sure weren’t very different:

The comparison is superficially compelling. A longstanding body of scholarship—by Stephen Steinberg, Marcia Graham Synnott, myself, and others—does in fact establish that Harvard, threatened by an influx of high-achieving Jewish students, did impose quotas on Jewish applicants in the 1920s, using elusive nonacademic qualities such as “character” and “personality” to limit their numbers. And in recent years, Harvard and other elite institutions have faced a surge in applications from Asian Americans with outstanding academic records, and they, too, have often been plagued by lower scores on personality assessments. Over the past decade, the portrayal of Asian Americans as the “New Jews” has gained traction, appearing everywhere from the Wall Street Journal to the New York Times, from the Atlantic to the Times of London.

Whatever distinctions Mr Karabel took, they were distinctions without a difference!

So now we come The Washington Post:

Opinion: How the myth of a ‘model minority’ works to divide Americans

Theodore R. Johnson, from his Twitter profile.

by Theodore R Johnson, Contributing Columnist | Tuesday, July 11, 2023 | 6:30 AM EDT

Lately, I’ve been thinking a lot about Bobby and Annie, two of my high school classmates from 30 years ago. They used these American names instead of their given names. Bobby, whose given name I never knew, is of Japanese descent. Annie, whose given name I always knew, is the daughter of Taiwanese immigrants. By any names, they are both Americans, born and bred.

It was the early 1990s, and I wondered why so many Asian American students picked new names. We grew up in North Carolina at a time when elementary school teachers wheeled out big TVs on steel media carts so we could watch college basketball in our classrooms. We could pronounce the name of Duke University’s former coach — Mike Krzyzewski — before we could tie our shoes. If we could say all those consonants, then we could say Annie’s given name. Meanwhile, Black Americans were becoming more creative with their names, and, let me tell you, Ka’Taydreeyah wasn’t changing her name to Kate for anyone.

“If we could say all those consonants,” huh? LOL! If you can tell me how you get shih-ZHEF-skee out of Krzyzewski, I’d be glad to read it.

Had Mr Johnson thought about it a bit, he might have realized that ‘Americanizing’ names was hardly something started by Asian-Americans; American Jews have been doing so for over a century because, yes, anti-Semitism has existed; the Harvard Jewish quota certainly proved that.

They’ve been on my mind after the Supreme Court’s ruling last week that effectively ended race- and ethnicity-based affirmative action in college admissions. The suit was filed on behalf of Asian American students who claimed such programs discriminated against them. The term “model minority” does not show up in the court’s opinion — but the myth helps in understanding why affirmative action was destined to pit Asian and Black Americans against one another. It was always going to end this way.

The model minority myth is the idea that Asian Americans, relative to other people of color in the United States, have a stronger commitment to hard work and determination that has resulted in economic and academic success. It says they acculturate better and with more intention. The myth suggests that Bobby and Annie felt compelled to choose familiar American names to ease their acculturation into White American society. But what of the taunting and beating? If this is how the nation treats its model minorities, what hope is there for the rest of us?

Mr Johnson wants us to believe that ‘hate crimes’ against Asian-Americans somehow make their “economic and academic success” irrelevant, but the admissions people at Harvard and UNC aren’t out on the streets, assaulting Asians for no discernable reason other than thuggery; they are educated people, in decently compensated positions, in our hoitiest and toitiest universities.

The way to stop dis-crimination on the basis of race is to stop discrim-inating on the basis of race.” — Chief Justice John Roberts, Parents Involved in Community Schools v. Seattle School District No. 1

We have previously noted the apparently acceptable racial discrimination against Asians in the United States, and how white liberals not think that black and Hispanic students “have what it takes to compete on merit,” but they dismiss the achievements of students of Asian ethnicity as “white adjacent.” In his own way, Mr Johnson is telling us that Asian-Americans are just that, de facto white people.

This myth is a recent invention. Asian Americans — admittedly an inaccurate catchall group name — were long subjected to discriminatory policies in the United States. Historian Ellen Wu describes the characterization of Asian Americans and immigrants — specifically from Japan and China — through the 1940s and 1950s as definitively not-White. But as the geopolitical interests of the nation evolved after World War II and the civil rights movement domestically took center stage, she says, a narrative emerged that painted Asian Americans as “the model minority — a racial group distinct from the white majority, but lauded as well assimilated, upwardly mobile, politically nonthreatening, and definitively not-Black.”

Here Mr Johnson essentially complains that Asian-Americans have done exactly what we have said immigrants should do: assimilate into the larger American culture, and work hard to make themselves successful. That, after all, was what was expected of other waves of immigrants, mostly from Europe: Germans, Irish, Slavs, and, Heaven forfend!, those so successful that Harvard had to quota-restrict them Jooooos.

Perceptions of Asian Americans changed just as the concept of colorblindness was redefined in American discourse. When Asian people were “definitively not-White,” the idea of a colorblind society was the antithesis of the hierarchical society structured with White people at the top. As the civil rights movement began racking up policy wins, Asian Americans were redefined as model minorities and “colorblind” came to mean race is no longer a factor; as such, race-conscious remedies are the new racism.

By the late 1960s, many White politicians were using the model-minority concept in two primary ways. The first was as proof that the government had sufficiently addressed racism in our laws and that the playing field was now level. What else could explain how Asian Americans, after decades of overt discrimination and oppression, achieved such success? The second was an explicit counterargument to civil rights leaders who insisted tailored, race-conscious policies were necessary to address the lingering effects of slavery and Jim Crow. It made Black people the polar opposite of the model minority, shifting the onus for racial disparities almost completely onto Black people and their supposed lack of initiative and ingenuity.

And here we come back to Mr Johnson’s opening. “Bobby” and “Annie”, he said, picked very Americanized names, as they were trying, almost certainly encouraged by their parents, to fit in, to assimilate, while “Ka’Taydreeyah” certainly would not. “Black Americans were becoming more creative with their names,” Mr Johnson wrote, but has that not worked out to be a separation of black Americans from the rest of American culture?

Oh, wait, I’m not supposed to say something like that, am I?

Following this thinking through to its logical conclusion, the Supreme Court’s affirmative action ruling is not surprising. Its portrayal of Asian Americans as model assimilators is not a compliment, nor is it proof that structural racism is an artifact of the past. This portrayal serves only to exploit one minority group, to condemn others and to argue against accounting for a people’s history.

Also see: Robert Stacy McCain: Math = White Supremacy

And there you have it: Mr Johnson has just told us that being “model assimilators is not a compliment,” an argument which, with his early emphasis on names, is that it is perfectly legitimate for black Americans not to assimilate — an odd term, given that blacks have been in America for almost as long as whites — but it ignores an obvious point: what if black culture in America is simply not as socially or economically efficient or productive as white culture? Is it possible, just possible, that separate cultures in our social and economic systems could produce different aggregate results?

The legal arguments for and against affirmative action in higher education will continue. Universities will try new ways of diversifying their populations, and begrudged people will sue. The model-minority myth is sure to be a weapon in these battles.

Mr Johnson has just told us that those who have suffered actual discrimination in the pursuit of Affirmative Action haven’t really suffered anything, but are simply “begrudged,” as though someone cut ahead of them in the check-out line at Kroger, rather than someone not being allowed to shop at that store.

But policy aside, the myth cannot escape the particularly ugly set of assumptions that results when American exceptionalism meets racial hierarchy: If you are Black in America, you can become an exceptional person; if you are Asian in America, you are an exceptional people; and if you are White in America, you are the prototype. We’ve been working ourselves away from that America for some time, but we risk returning to it if we trade one set of racialized myths for another.

Mr Johnson concludes by telling us that we are all different, yet somehow, some way, he cannot conceive, or at least will not recognize, that different actions can and will produce different results, and that if those actions tend to be internally consistent among racial or ethnic groups, those groups will, in the aggregate, see disparate results.

It’s a very simple reality that people do not want to recognize: the social, economic, and political culture which developed under European people has produced stronger and more prosperous social and economic results. The “model minorities” in the United States which had been previously discriminated against, Jews in the early twentieth century, and Asians somewhat later, assimilated and adopted much of that Western civilization culture, and they have prospered in the United States, and there is no particular reason of which I can think why black Americans could not do the same.

The ‘Wise Latina’ says the quiet part out loud.

At the annual Mario G. Olmos Law and Cultural Diversity Lecture at UC-Berkeley in 2001, Federal Judge Sonia Sotomayor said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Those words were fished out after President Barack Hussein Obama nominated her to fill a vacancy on the Supreme Court. What can those words mean other than, as a jurist, Hudge Sotomayor would take her decisions, at least in part, based not on the law, but on her race, sex, and ethnicity.

She backed away from that statement in her confirmation hearings, “declaring it ‘a rhetorical flourish that fell flat’ and stating that ‘I do not believe that any ethnic, racial or gender group has an advantage in sound judgment,'” and she was ultimately confirmed, 68 to 31.

Well, today Associate Justice told us, once again, that it isn’t what is written in the law, or the Constitution, that is important, but people’s feelings! In her dissent in 303 Creative v Elenis, she wrote:

The meaning of our Constitution is not found in any law volume, but in the spirit of the people who live under it.[1]303 Creative v Elenis, , page 38 of dissent, page 70 of the .pdf file.

This is rather remarkable. The Justice, utterly horrified by the decision that a Colorado web designer could not be compelled to create a website for a same-sex ‘wedding,’ cited precedent after precedent telling us that the government could, and has, gotten away with both restricting and compelling various forms of commercial speech, along with dozens of citations of laws and court cases concerning equal access to commerce and commercial enterprises. Yet, after all of that long dissent, she broke down and told us that what was written in the law just flat didn’t matter. What mattered, according to our ‘wise Latina,’ is how the people who live in the United States feel about things.

This is a hugely dangerous position, but one which is hardly unexpected. Justice Sotomayor voted against religious freedom in the cases of Calvary Chapel Dayton Valley v. Sisolak and South Bay United Pentecostal Church v. Newsom, but railed against the decision, this time supporting the freedom of religion and assembly in Roman Catholic Diocese of Brooklyn v Cuomo. The cases were all about the same thing: the states forcing churches to close, due to the COVID-19 penicdemic, and Justice Sotomayor believed that the virus trumped the Constitution of the United States.

The good Justice also saw nothing wrong with restricting our Second Amendment rights in New York State Rifle & Pistol Association v Bruen and McDonald v City of Chicago, or upholding equal protection under the law in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The plain words of the Constitution meant nothing to Justice Sotomayor, or the other liberals on the Court, as they went through all sorts of contortions to say that somehow, some way, the rights guaranteed to us by the Constitution just didn’t matter when it came to liberal policies.

The liberals on the Court are hardly the only ones who want to massage the words of the Constitution to mean something other than what they say. The Editorial Board of The New York Times opined:

In striking down affirmative action in higher education on Thursday, the Supreme Court’s conservative majority said it had to do so because the Constitution forbids any form of racial distinction. With a single opinion, the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.

The Editorial Board spend many words telling us why Affirmative Action is so desperately needed, yet never manage to give us a reason as to how it fits under the equal protection of the laws guaranteed by the Fourteenth Amendment.

Thursday’s ruling, written by Chief Justice John Roberts and joined by all of the Republican-appointed justices, takes a long time to make a simple — and simplistic — point: There is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in this view.

Left unaddressed was one of the Chief Justice’s points, that, in the context of university admissions, which are a zero-sum game, helping black applicants has another effect, hurting white and Asian applicants.

There is so much more that could be said, but, in the end, it boils down to this: the left have programs in mind which elevate the programs of the government over the rights of individuals, and today’s left are fine with that. And that is why sensible people must fight the left, fight for our rights, because the left won’t help us.

References

References
1 303 Creative v Elenis, , page 38 of dissent, page 70 of the .pdf file.

The Supreme Court destroys all chances of race-based ‘reparations’

It was 2003 when the Supreme Court released its decision in Grutter v Bollinger, 539 U. S. ____ (2003), in which a bare majority allowed the University of Michigan Law School to continue to consider race in its admissions decisions. Associate Justice Sandra Day O’Connor concluded, in something we have cited previously:

We take the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317ñ318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.[1]Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.

I have long said that it was internally both significant and stupid that the Supreme Court allowed something it said would be unconstitutional come June 23, 2028 to be allowable up until that time. Well, it has taken 20 of those 25 years, but the Supreme Court has finally righted that wrong. The Supreme Court finally released its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

To hear the principal dissent tell it, Grutter blessed such programs indefinitely, until “racial inequality will end.” Post, at 54 (opinion of SOTOMAYOR, J.). But Grutter did no such thing. It emphasized—not once or twice, but at least six separate times—that race-based admissions programs “must have reasonable durational limits” and that their “deviation from the norm of equal treatment” must be “a temporary matter.” 539 U. S., at 342. The Court also disclaimed “[e]nshrining a permanent justification for racial preferences.” Ibid. Yet the justification for race-based admissions that the dissent latches on to is just that—unceasing.[2]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.

Chief Justice John Roberts, writing for the majority, emphasized what we have known all along: the racially biased admissions structure being used by colleges and universities was not moving steadily, or in any way at all, to a terminal date in 2028, and that the schools which were party to this case, Harvard University and the University of North Carolina made no claims that they were proceeding toward that end.

In what may be an underappreciated footnote number 9, the Chief Justice noted:

The principal dissent rebukes the Court for not considering adequately the reliance interests respondents and other universities had in Grutter. But as we have explained, Grutter itself limited the reliance that could be placed upon it by insisting, over and over again, that race-based admissions programs be limited in time. See supra, at 20. Grutter indeed went so far as to suggest a specific period of reliance — 25 years — precluding the indefinite reliance interests that the dissent articulates. Cf. post, at 2–4 (KAVANAUGH, J., concurring). Those interests are, moreover, vastly overstated on their own terms. Three out of every five American universities do not consider race in their admissions decisions. See Brief for Respondent in No. 20–1199, p. 40. And several States — including some of the most populous (California, Florida, and Michigan) — have prohibited race-based admissions outright. See Brief for Oklahoma et al. as Amici Curiae 9, n. 6.[3]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.

If roughly 60% of American colleges and universities do not consider race at all in their admissions decisions, then it becomes clear that the consideration of race is unnecessary.

Court decisions are difficult to read, in large part due to all of the internal citations, but also because lawyers are, let’s face it, not usually all that great with prose. Nevertheless, I’d invite all of my readers — both of them! — to follow the link and read the decision.

There will be thousands of articles about this decision, and at least in our nation’s professional media, most will be negative. Solomon Jones in The Philadelphia Inquirer has a column entitled “Affirmative action is racial justice. The Supreme Court ruling is a step backwards. To be blunt, right-wing activists aren’t fighting to abolish racial preferences. They’re fighting to maintain them.” Mr Jones went through many of the reasons he believes we need Affirmative Action, but his column is noteworthy in one major way: he made no argument at all that the Court’s decision was based on a faulty reading of the Constitution.[4]Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.

In a mostly straight news article, Susan Snyder reported on how some Pennsylvania universities will deal with the decision, noting the sole exception the Chief Justice allowed, that in individual admission essays, the way racial discrimination impacted an individual applicant, and how he overcame them, could be considered. Count on admissions departments to start advising applicants to write about that!

The Editorial Board also weighed in on the subject.

But there was one brief point in the decision that seemed very important to me, and which I haven’t seen mentioned by anyone else:

The Court soon adopted Justice Powell’s analysis as its own. In the years after Bakke, the Court repeatedly held that ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action. “[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the Voting Rights Act. 517 U. S., at 909–910. We reached the same conclusion in Croson, a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group.” 488 U. S., at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id., at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”[5]Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.

The Chief Justice spent a significant amount of time, earlier in the decision, noting how the Fourteenth Amendment specified equal protection of the law, and that many subsequent decisions, as well as statements by elected officials and others, meant that equal protection of the law meant that all were equal under the law, regardless of race. With the paragraph above, the Court said that neither “ameliorating societal discrimination” nor allowing “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief ’ for every disadvantaged group” was constitutionally allowable, and that must certainly mean that payments or advantages given to black Americans, from the taxes of white Americans, for the enslavement of their distant ancestors, can be legal.

Robert Stacy McCain noted, amusingly enough, that only Donald Trump, among all living Presidents, is not the descendant of slave owners, as Mr Trump’s family did not arrive on these shores until after slavery had been ended. Since only direct injury, caused by a specifiable person or institution, is the basis for restorative payments, and there are no living Americans who were enslaved, it is impossible, under the Court’s standard to allow all black Americans, none of whom were directly injured by slavery, to be paid by white Americans, none of whom owned slaves and most of whom cannot be traced back to a slaveowner.

Naturally, the Usual Suspects are aghast that the Court said that racial preferences violate the Fourteenth Amendment, but the Court has, for at least 45 years since Regents of the University of California v Bakke tried to massage the Equal Protection Clause of the Fourteenth Amendment to mean something other than what it actually says. Now, at last, the Court has decided that yes, equal protection of the laws actually means equal protection of the laws.
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References

References
1 Grutter v Bollinger, Decision of the Court, page 31 of the .pdf file.
2 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 36-37 of the decision, and pages 44-45 of the .pdf file.
3 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 38 of the decision, and page 46 of the .pdf file.
4 Actually, Mr Jones’ column reads very much as though it was written before the Court’s decision was released, and that he had not been able to read the decision before he wrote his piece.
5 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Decision of the Court, page 35-36 of the decision, and pages 43-44 of the .pdf file.