Supreme Court Takes on Affirmative Action, Political Lying, More

Wednesday, April 23, 2014

Michigan Attorney General Bill Schuette (L) speaks during a press conference after going before the Supreme Court in 'Schuette v. Coalition to Defend Affirmative Action.' Oct. 15, 2013 (Andrew Burton/Getty)

It's a busy week at the Supreme Court. Yesterday they issued a decision upholding Michigan's right to ban affirmative action in college admission practices. The court also heard a case about the Internet TV provider Aereo, that could have a big impact on broadcast and online media and arguments about whether states can make it a crime to lie about candidates during a political campaign. Dahlia Lithwick, senior editor at Slate, rounds up the decisions and arguments, and takes your calls about what comes next.

Segment Excerpt: Dahlia Lithwich and Brian Lehrer Discuss the Affirmative Action Decision


Dahlia Lithwick

Comments [56]

Um,..LBJ was speaking fifty years ago. It's time to refresh your page and your mind, Brian.

Apr. 26 2014 12:22 PM

@Joyce from NYC

"If blacks from Nigeria and the Caribbean do better than American whites in income, professional achievement and elite school admissions, how is it that racism is the cause of the problems of American blacks?"

Are you really that naïve? Blacks who choose to emigrate here bring particular skills or our State Dept would not permit them to stay. It is no surprise that immigrant blacks have fared better than the progeny of kidnapped ones. Sheesh!


"Shouldn't Sotomayor recuse herself since she admitted on this show last year that she wouldn't be on the court without affirmative action?"

Did Justice Taney recuse himself from deciding Dred Scott because he was a Southern racist? A justice's ruling should be developed from their understanding of the law and the facts of the case at hand. No person can prevent their upbringing, their viewpoint, from being a part of their decisions but it should never be the basis for it.

(I understand that the concept of not pre-judging a case is anathema for you. You should really give it a try.)

Apr. 26 2014 11:24 AM
Jacob from Brooklyn

The "emotional appeal" that one caller called Justice Sotomayor's dissent is flat-out sexist. Justice Scalia is the most emotional member of the Court. If his comment that this week's 4th Amendment decision is a "freedom-destroying cocktail" is not an emotionally charged dissent, then neither is Justice Sotomayor's defense of Affirmative Action. When a woman makes an impassioned plea, she is a hysterical, weak, over-reactive coward; when a man does so, he is a strong, fearless, bold leader. This is a double standard that needs to disappear.

Apr. 24 2014 09:59 AM

Brian -- you're becoming what you hate about talk radio -- an angry, WHITE man who insults his guests.

Time for you to move over to MSNBC, I think.

Apr. 23 2014 03:29 PM
Michael L. from Manhattan

This comment is inspired by some of the things Mr. Bad from NYC said. Norman Matloff, a statistician at the University of California (I think), has proposed what might be a way to equalize opportunity without "promoting people as a group" as Mr. Bad put it. Here's how it would work in a college or university setting. First, it would be decided what minimum criterion or criteria students would have to meet to be likely to do well at the institution. For the sake of discussion let's say this is obtaining at least a score of X on the SAT. Second, all those students who have scored at least X would be eligible for admission. If there is a greater number of those students than there are slots, a number of students that's equal to the number of slots would be chosen randomly. Matloff argues that this would be a fair method of allocation because it doesn't explicitly take into account anyone's membership in any particular group. I've thought a lot about this approach and am not sure yet where I come down on it. One thing I have a question about is how is the criterion or are the criteria to be determined. Another issue is the fact that this way of allocating slots doesn't address whatever discriminatory mechanisms there might be which result in members of some groups being more or less likely to meet the criterion or criteria. But a reasonable response to this concern might be that it isn't the job of a university admissions process to address widespread societal discrimination that may affect who is or is not likely to succeed there. But the proposal is at least worthy of discussion, and perhaps this is something Brian L. should do a show on one day.

Apr. 23 2014 01:45 PM
Mr. Bad from NYC

@ fuva from harlemworld

You've oversimplified my point. It's true that equality before the law does not result in equality of opportunity but what about the other specific protections the law provides minority groups as in housing and hiring? Those laws specifically protect minorities and provide means of redress when discrimination is found to be extant. Sure, racism is still present both in our society and in our culture, racists do exist and yes the criminal justice system is deeply flawed and in need of reform. But what else can be done in terms of the law that would result in more equality of opportunity as opposed to outcome without penalizing or promoting people as a group which is THE DEFINITION OF DISCRIMINATION? There isn't much. I'm not claiming that we live in some sort of post-racial world where minority groups don't suffer serious disadvantages only stating that there is nothing more that the law can or should do to rectify those issues. Basically it comes down to changing people's attitudes and opinions and that is a slow train coming. I hope there is a renewed interest and discussion that will take place that will challenge racist notions (for EVERYONE, black, white or whomever) but it needs to take place in the public sphere not the legal one. Pointing fingers and making scurrilous accusations that affront the dignity of a huge and diverse population (again, black and white) avail us nothing.

Apr. 23 2014 12:35 PM
Mike from Rego Park


As a lawyer, I am very disappointed that you seemed to hold up Justice Sotomayor as the standard bearer for efforts to curb discrimination and disregard for human rights in general. She is clearly not that person. I
appeared before her personally in the Second Circuit on a 9-year age discrimination case, at the precise moment she had been nominated for the Supreme Court. To be frank, I found her to be a sheep in sheep's clothing.

I remember the lawyers for the corporate defendant were terrified. The three judge panel were: Sonia Sotomayor, as chief judge, the gentleman who acted as counsel to Justice Ginsburg at her confirmation and a judge of color, but who was a far lesser light than his colleagues. Justice--then Judge--Sotomayor incisively focused on the issue in the massive record that led to dismissal by the judge in the District Court: a single sheet of paper that my client says was conveniently fabricated by the employer, which absurdly had the plaintiff agree to her discriminatory discharge. (In other words, as with 80% of employment cases, it had been dismissed before trial for a simplistic reason.). Justice Sotomayor heard me for a few moments, my adversary, in a trembling voice said little; then the judge essentially shrugged, delegated the opinion to the Lesser Light, cleared her desk and headed off to Washington. The opinion: terse and absurd.

Justice Sotomayor is an example of how intelligent people of color, once given an affirmative boost, forget their origins. In the little clip you played, she spoke not of the fact she was plucked from the Bronx over legions of others, but focused on the idea of "it's not how you get there, but what you do with it once you do." In other words, she argued merit not affirmative action as the avenue for success. True, she was and is very bright, but she has a sex-neutral tendency to personalize as she just did. If she feels no connection, she blows with the wind. Read some of the law and order decisions she has signed into. It is not the same person who dissented in the Michigan case.

The truth is she was not ready for the Supreme Court. We are not talking ability, we are talking ripeness and experience. I remember reading one of her first Second Circuit decisions in a debt collection case. She wrote volumes about fairness, then turned around and the sheep fed the debtor, a white man, to the wolves.

Apr. 23 2014 12:03 PM
fuva from harlemworld

...My last comment was for "Mr. Bad."

And, Mr. Bad, can't volley with you today because I'm at work. But I wish you illumination.

Apr. 23 2014 11:53 AM
fuva from harlemworld

The notion that "equality before the law" equals equality of opportunity reflects a level of delusion and ignorance of history/intergenerational effects/socioeconomics/sociopolitics too vast for me to adequately address here. But it also reflect an ignorance of the law, for which there is absolutely NOT "equality before", as in, for instance, the criminal injustice system, which of course perpetuates the intergenerational/socioeconomic/sociopolitical effects...Not to mention that a fundamental tenet of American jurisprudence is restitution for harm, which has conveniently never manifested in this realm...Your comment reflects the race ignorance that is the new racism; the ignorance of the history and the effects that prevails because we don't want to really talk about it and choose blissful, pathetic, short-sighted denial instead...Again, I'm thinking that the more people like you keep talking, the more black folk get re-activated and the better chance we have of launching race justice 2.0 toward critical progress, for us ALL. And if SCOTUS continues to retreat, we'll just have to find other means.

Apr. 23 2014 11:51 AM
Mr. Bad from NYC

@ fuva from harlemworld

Maybe you just have a different idea of what "equality of opportunity" is? IMO that means there are no legal bars or impediments imposed on any group by another group by means of the law. Segregation clearly discriminated and the court famously and rightly stated that separate but equal was nonsense. Equality before the law, equality in hiring, housing, etc. have also been enshrined in law. What else is there? Nothing else can be justified in a free society. You cannot legislate your way to a race-blind, utopian society.

Apr. 23 2014 11:29 AM
fuva from harlemworld

Those, here and elsewhere, laboring under the delusion of "equality of opportunity" need to spew this nonsense with megaphones, so forward motion with race can resume...

Apr. 23 2014 11:12 AM
Taher from Croton on Hudson

@ Mr. Bad from NYC, a Fascist racist is a Fascist racist. No debate here just facts.

Apr. 23 2014 11:11 AM
Taher from Croton on Hudson

@jgarbuz from Queens, a modern states standing based on racial majority and domination is doomed to failure. The German Nazi State attempted that with mass extermination of Jews and all undesirables.

Apr. 23 2014 11:07 AM

Brian: I agree with the caller who said you were out of line. To make your argument you have to say that the Constitution requires affirmative action. It doesn't, although it allows it. Without that requirement, there is nothing to bar the people of Michigan voting as they did. I may disagree with that as a policy, but that is another matter as far as the Constitution is concerned. That does not make someone naive either. Legacies are not a group protected in the 14th Amendment. Of course legacy conveys an unfair advantage and is therefore connected to the issue of race. Please do not disparage those whose analysis of what the Constitution requires as a Constitution differs from yours. And, there is no bar of the universities of that state -- or any other -- from admitting and giving scholarships to poor people,

Apr. 23 2014 11:05 AM
Mr. Bad from NYC

@ The Truth from Becky

It's a version of "Godwin's Law", i.e. if you call someone a Nazi or compare someone to Hitler you automatically lose the debate owing to the utter lack of intelligent analysis. The same should go for accusations of racism. If you can prove someone is racist according to their statements or actions then go ahead and do so but simply calling someone or something racist because you happen not to like it is morally and intellectually disingenuous. Equality of opportunity does not result in equality of outcome, that's a fact of nature, and when the law attempts to enforce a politically driven regime of forced "outcomes" they create injustice, the very thing the law is supposed to alleviate.

Apr. 23 2014 11:05 AM
Jeff from New York

The conservative majority takes the saying "Justice is blind" to heart, consistently operating on a principle of willful ignorance. Ignorance about racial prejudice and disparity in America (Michigan, Voting Rights Act), ignorance about the corrupting nature of money in politics (McCutcheon, Citizen's United) and ignorance about the corrosive level of inequality in our society (numerous pro-business, anti-worker decisions). It's too bad we can't discriminate on the basis of blindness in choosing Supreme Court justices.

Apr. 23 2014 11:04 AM
Justin Darko from new brunswick

I think you will see more states pass referendums abolishing AA. Then minority attendance will plummet as per the statistics mentioned in the piece. In the short term the current majority will be happy but this is short sighted in my opinion. The previous segment mentioned the declining education as a reason for the shrinking middle class. As latino's become the majority over time this country will be hamstrung due to the lack of diversity policy's. I imagine america will look very similar to South Africa. A small white minority well educated and a new majority plagued with educational issues. In my opinion this was not only a blow for diversity but for the future of America.

Apr. 23 2014 11:00 AM
Taher from Croton on Hudson

@ MartinChuzzlewit , again showing your bigotry, and misogny. Why be here there are plenty of Nazi style radio shows in freedom for white America?

Apr. 23 2014 10:59 AM
fuva from harlemworld

UNDERSTAND, the caller's invoking of "legal precedent" is ignorant, as is his comparison of blacks to Irish...This racist Supreme Court doctrine that the acknowledgement of race is unconstitutional results from successive semantic mix-ups and construction-creep in interpreting precedents like Brown v. Board of Ed:

These decisions criticized "race classification", where "classification" meant "discrimination" based on race. Courts like the current one corrupted that meaning and applied the "classify" = "acknowledge race" nonsense.

Apr. 23 2014 10:56 AM
jgarbuz from Queens

The creation of a society with no normative majority to act as a template for everyone else is the greatest challenge for the modern constitutional state. When the US no longer has any majorities, and hence there is no group that the rest have to aspire to emulate, and each culture can keep its own norms and still get a fair shake is the big challenge not only for the US but many other countries as well.
What happens when "whites" are no longer the dominant economic, political or demographic power in this country? When half of our Congress is non-white? Do we remain one country under one flag or do we balkanize and break up like Yugoslavia or the USSR? That will be the main US problem in this century, IMO.

Apr. 23 2014 10:56 AM
Joyce from NYC

I am struck by the racist positions of the guest.

If blacks from Nigeria and the Caribbean do better than American whites in income, professional achievement and elite school admissions, how is it that racism is the cause of the problems of American blacks?

Apr. 23 2014 10:54 AM
The Truth from Becky

"To be called a racist is to end all conversations?" NO to be called a racist means you are a racist.

Funny how some people would try to flip it back on the minority group instead of acknowledging that there is still an unfair prejudice, underlying and non that fairness has to be regulated by the new millenium.

Apr. 23 2014 10:54 AM
Mr. Bad from NYC

Wow, Brian, you really showed your @ss today. This segment is a classic. LBJ the great "equalizer"! Is that also the same guy who was quoted in Ronald Kessler's book "Inside The White House" claiming that “I'll have those n*ggers voting Democratic for the next 200 years.” Yes, a true social justice warrior that LBJ.

Apr. 23 2014 10:54 AM

we will unfortunately never move beyond race issues in this country. It is just too juicy to Balkanize people for political means. It won't matter how successful individual groups get or what they've achieved they will always be separated so that we can be picked off by different political parties. There's nothing more to it.

Apr. 23 2014 10:53 AM
Taher from Croton on Hudson

Most of the guys in the this corrupt Supreme Court would feel very comfortable in raciest old South Africa.

Apr. 23 2014 10:52 AM
john from office

Brian feels so smug saying "white People" over and over again. He would never say black people over and over again, if the issue was reversed.

Another bleeding heart white guy, filled with guilt.

Apr. 23 2014 10:52 AM
Sue from Manhattan

Caller Frank -- the playing field has changed from when your relative came from Ireland and pulled himself up by his bootstraps. That was long before "trickle down economics" and slavish worship of the supposed "free market" and Citizens United and all the policies enacted starting in the 1980s to benefit the rich and keep down everyone else. That avenue (which all our immigrant families followed, mine included) can hardly be done now.

Apr. 23 2014 10:51 AM
Leo A from NJ

Brian pulling a Fox News/MSNBC emotional response. Highly surprised

Apr. 23 2014 10:50 AM

Thanks, caller Frank ...
LOL, you got to Brian - he got snippy .... and then sanctimonious.

(and Lithwick actually called her "emotional", not Frank)

Apr. 23 2014 10:50 AM
Michelle C from LIC

Affirmative action is not about bean-counting racial statistics. It's about equity. That's harder to define and a messy debate, but it's the reason we have civil society, intellectual debate, and democratic community institutions to continue that conversation when the court is not in session. The court's duty is to facilitate that dialogue, not to shut down policies that protect those principles.

Apr. 23 2014 10:50 AM
jgarbuz from Queens

"Affirmative action" should officially come to an end in 2018 or 50 years after its creation in 1968. It was necessary then, but black people today have the knowledge and resources to make it in academia without any special favors.They needed a leg up then; they don't need it now. And same goes for females.

Apr. 23 2014 10:50 AM

No, not a great point Brian.

There can be no white minority unless you regard others monolithically. That's a fundamental misconception. Sex-based, sure, there are only two sexes - with a relatively few players who change teams. But non-white is not a group that can ever or will ever act together.

Apr. 23 2014 10:49 AM
Danielle from Brooklyn

Brian zapped for his own emotional reaction

Apr. 23 2014 10:49 AM
Sue from Manhattan

At his Senate confirmation hearing, now-Chief Justice Roberts widened his eyes to appear innocent and swore he would respect precedent.

He lied.

After the performance, so far, of the Roberts Court, a bolt of lightning should come down and strike anyone who claims that it's liberal judges who are "activist."

Apr. 23 2014 10:48 AM
Tom P from NJ

I guess that it is OK to lie on your radio program, as well.

Apr. 23 2014 10:47 AM

How will this decision influence all the voter restrictions of minorities?

Apr. 23 2014 10:46 AM
fuva from harlemworld

Race is a bigger issue here than minority status.

Apr. 23 2014 10:46 AM
Taher from Croton on Hudson

Brian do not be too sure that this corrupt Supreme Court will not up hold Jim Crow.

Apr. 23 2014 10:45 AM

We all live segregated.
So forget race, diversity through mixing the zip codes.

Apr. 23 2014 10:44 AM
Karen from NYC

If we look at the last two "racial" decisions together, we see the lie at the core of this affirmative action decision. As Voting Rights have been dismantled, minority citizens are NOT able to express their opinions on matters which affect them in the voting booth. It has gotten purposely harder for them to vote in many states. And this is OK with the SCOTUS. Dare we say they have a white supremicist agenda?

Apr. 23 2014 10:43 AM
fuva from harlemworld

RUCB_Alum, to use the AA decision to convince yourself "that institutional racism is over in America" is not "optimistic", it's delusional and regressive. So is the notion that "no longer white vs. black but speckled grey "...Again, we may need to regress in this way, in order to reactivate the black community and ultimately progress.

Apr. 23 2014 10:43 AM
Sue from Manhattan

So NOT looking at someone's race in college admissions actually FAILS to look at the whole person, and denies their race. In other words, it says to applicants, "you're not black -- that's not part of your experience or who you are."

Racist, pathetically racist.

Talk about fomenting disrespect for our government institutions….

Apr. 23 2014 10:43 AM
Elizabeth from Lomontville, NY

I'm white and I totally agree with Justice Sotomayor.

Apr. 23 2014 10:42 AM
Caesar Romaine from Manhattan

Brian -

Thanks for the unbiased coverage... nothing "delves into the issues and links them to real life" like a one-sided conversation with reporters from the New York Times and Salon, peppered, of course with your completely neutral "commentary".

Apr. 23 2014 10:42 AM

Tell the "white privilege" agitprop to poor white kids on welfare, who far outnumber (as Brian likes to point out) poor minorities.

Apr. 23 2014 10:42 AM
Taher from Croton on Hudson

@MartinChuzzlewit , thanks for hiding your racism with some cover argument. Live long enough and see where racial hatred will lead your life and the life of this country.

Apr. 23 2014 10:41 AM

SCOTUS decision to uphold Michigan law requiring that RACE CANNOT be taken into account could be seen as a sign of progress. (Albeit the reality of the fact has its Bizarro-Land aspects]

You can't PAY ATTENTION TO RACE in making admissions. The pessimists among us will think that means that the current dividends of 'white privilege' will be even harder to bridge. The optimists will use the decision to convince themselves that institutional racism is over in America.

I see the fight moving in to new areas. It's no longer white vs. black but speckled grey on top of darker speckled grey. The fight goes on.

Apr. 23 2014 10:39 AM

Shouldn't Sotomayor recuse herself since she admitted on this show last year that she wouldn't be on the court without affirmative action?

Apr. 23 2014 10:38 AM
fuva from harlemworld

Ignorant comment(s), MartinChuzzlewit. Keep them coming.

Apr. 23 2014 10:38 AM

David Gelernter - “The War on Truth”

"Will we challenge the diversity racket, the “affirmative action” con game that still dominates so many important institutional decisions? Americans dislike affirmative action and always have, but Republicans are too scared to speak up."

Apr. 23 2014 10:36 AM
Sue from Manhattan

So the "subjectivity of truth" (anti-abortion group case) has now been enshrined in federal law by the US Supreme Court.

It would be a riot to see how they'd rule on a case based on creationism's claim that the world is only 7,000 years old.

Apr. 23 2014 10:36 AM
Taher from Croton on Hudson

Welcome to the New America: mass poverty and racial apatheidism sanctioned by a corrupt raciest Supreme Court. Fabulous.

Apr. 23 2014 10:34 AM
Amy from Manhattan

Why should the 1st Amendment protect lying in political advertising more than in any other kind of advertising? ...uh-oh.

Apr. 23 2014 10:34 AM
Sue from Manhattan

This is the legacy of George W Bush: a Supreme Court that sees its role -- and is willing to change long-standing precedent to enact it -- as protector of the 1%.

Apr. 23 2014 10:32 AM

".....thereby reinvigorate movement toward race justice."

Afirmative action gave us Barry Obama .... how's that working out for the middle class?

No racial justice !!?? LMFAO.

Apr. 23 2014 10:29 AM
fuva from harlemworld

The AA decision is formalism based in ignorance. Clearly, the justices required better amici briefs...The upshot is that such regression may awake black folk from their current stupor, and thereby reinvigorate movement toward race justice.

Apr. 23 2014 09:54 AM

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