The Michigan Affirmative Action Case: Two [GW] Justices Face Off On CNN

Supreme Court150px-gwulogoBelow is yesterday’s column on on the ruling in the Michigan affirmative action case, which we discussed earlier this week. I was asked to write a response to the decision and jumped at the opportunity to feature a couple of the GW “justices” from my Constitution and the Supreme Court seminar. The class meets in the Spring Term and reviews one case a week from the docket of the Supreme Court for that term. We read and discuss a selection of briefs filed in each case and the lower court opinion. The “justices” then rule on the merits, explaining their own take on the underlying legal issues and the role of the Court in the controversy. We then take a separate vote to predict what that “other” Supreme Court will do. Over the years, I have found that the students are remarkably accurate in their predictions, far more accurate than most commentators. Indeed, I have often found the opinions of the GW Court to be superior to its more famous counterpart on Capitol Hill. At the end of the term, each student writes a majority opinion and either a dissenting opinion or concurring opinion. They can choose any case from the current term. Of course, public commentary following the release of a decision might raise some questions of judicial ethics, we can at least claim to have been more circumspect than some of the members of that “other” Court. So here is the column from CNN and thank you Justices Yvette Butler and Vincent Cirilli.


CNN Editor’s note: With the U.S. Supreme Court’s ruling this week on Michigan’s affirmative action policy in college admissions, CNN asked George Washington Law School professor Jonathan Turley to have two of his law students, Yvette Butler and Vincent C. Cirilli, debate the ruling. The opinions expressed in this commentary are solely those of the authors.

By Jonathan Turley

In the aftermath of the decision in Schuette v. Coalition to Defend Affirmative Action, there is one thing (and perhaps only one thing) that most everyone agrees upon: It is a game changer.

After decades of conflicting and increasingly convoluted decisions on the use of race as a criterion for university admissions, the Supreme Court ruled Tuesday that the citizens of Michigan could constitutionally ban the use of race and other criteria in the selection of students.

For some, the court affirmed the right to establish a colorblind selection process. For others, the court engaged in an act of willful blindness to the racial realities of society.

The court has been struggling in this area for decades. In 1977, in Regents of the University of California v. Bakke, the court allowed only a limited use of race for the purpose of achieving “diversity” in classes. The Medical School at the University of California at Davis set aside 16 of the 100 seats for minorities. The court ruled it unconstitutional but was deeply divided on why — a harbinger for the line of cases that would follow Bakke.

The court spent nearly the next 40 years spinning on the ice of affirmative action, unable to get traction or a clear direction. The court’s split decision in 2003 is illustrative. It was presented with two cases involving the use of race as a criterion in the undergraduate and the law school admissions processes at University of Michigan.

In one case, Gratz v. Bollinger, the court voted 6-3 that the university violated equal protection in the selection of students based on race and other criteria. It then ruled 5-4, in Grutter v. Bollinger, to uphold race criteria in the admissions process for Michigan Law School.However, Associate Justice Sandra Day O’Connor stressed that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor’s statement was ridiculed by many (including some on the court), but seemed to capture the fluidity of the court’s position on the use of race.

In 2013, the court again seemed to produce a nuanced and uncertain decision in Fisher v. University of Texas at Austin, where the court rejected a lower court decision upholding the use of race in admissions at the University of Texas. However, it did not prohibit the use of race but rather sent back the case for the imposition of a more demanding test of “strict scrutiny.”

These cases offered little hope that a “bright line” could be reached to bring resolution of the issue and meant that the court would continue to referee such matters. That line, however, may now have been reached in Schuette.

Michigan voters responded to the divided results in the Grutter and Gratz cases to bring their own clarity to the area. They passed a constitutional amendment that required an entirely colorblind process for selection at state schools (as well as barring schools from giving an advantage to some students based on other immutable characteristics like gender). By a vote of 6-2, the court ruled this week that citizens could do precisely that.
In so ruling, the court for the first time created an avenue that could end this longstanding controversy by vote of citizens. Seven states have already passed such rules, and this decision is likely to encourage others to follow.

In my seminar on the Constitution and the Supreme Court, my students and I debate leading cases each term and voted both on the merits and on our prediction as to the outcome in that “other” court.

So, in our recent vote, the GW Supreme Court voted overwhelmingly, 11-4, to reverse the Sixth Circuit and allow Michigan voters to make such a decision. The class also predicted the result in the case — again by an 11-4 vote.
Here are two of our “GW justices” who viewed the case in manifestly different ways:

140424175823-yvette-butler-head-shot-left-teaseAGAINST: Ruling reflects ‘sad history’ of racial hurdles
By Yvette Butler

The importance of the court’s decision is amplified by our sad history of placing hurdles to bar minorities from meaningful participation in the political process. Race-conscious policies, by the court’s own admission, are highly controversial and should be confronted in the political process through healthy debate. However, the debate means little if no real action can be taken to implement what was decided through that debate.

The Michigan Constitution already contained a process for deciding university admissions policies. Michigan residents had ample voice through elections to choose members of a board that were an integral part of this process.

If the board members were not advancing the will of the people, residents could have made their voices heard through elections. This switch from a highly accessible and accountable board to a state constitutional amendment is an impermissible restructuring of the political process which will only serve to cripple the effectiveness of public debate and severely disadvantage the minority. By adopting a change on a state constitutional level, the issue is further removed from the hands of the people.

Even assuming that a healthy debate will take place, the decision places a significant hurdle in the way of any concrete action. This decision goes against clearly established Supreme Court precedent that it is unconstitutional to inhibit meaningful access to the political process for minorities. The Supreme Court plays a special role in our system. It must uphold constitutional rights, especially in the face of majority rule where that majority seeks to take a voice away from the minority.

140424175721-vincent-cirilli-head-shot-left-teaseFOR: Court should not undo the will of the people
By Vincent C. Cirilli

The political process yields favorable and unfavorable results. As long as the government does not interfere with the right to participate in the process, and as long as the results of that process are constitutional, the courts cannot take power from voters and undo the will of the people. The Supreme Court made clear that Schuette was not about the constitutional validity of affirmative action programs.

Instead, the case was about whether Michigan’s constitutional amendment barring affirmative action interfered with the right to participate in the political process. The court correctly ruled that the process functioned properly.

What did that process entail? Michigan’s Proposal 2, a statewide referendum, was approved by 58% of Michigan voters. The amendment the voters passed does not restrict speech, deny voting rights, or impose majoritarian barriers designed to prevent the minority from achieving its goals.

In other words, the amendment does not interfere with the political process. Voters are not silenced, the issues are not censored, and the debate surrounding affirmative action is not over.

If the role of the court is to perfect democracy, then the court fulfilled its role in not overturning Michigan’s amendment. A ruling to the contrary would undermine democracy by removing this debate from the public sphere and leaving its resolution in the hands of nine unelected judges.
Some may disagree with Michigan’s amendment. That is to be expected and encouraged. The political process is always ongoing and perhaps the issue will be revisited. In the meantime, the debate will continue, ideas will be shared, and the political process will march forward.

29 thoughts on “The Michigan Affirmative Action Case: Two [GW] Justices Face Off On CNN”

  1. In the context of freedom and equality, isn’t neutrality the solution? No discrimination; let the best man win? In a perfect world the playing field would simply be level, not tilted in any direction.

    Affirmative action is discrimination in reverse. No action is neutrality. Justice for all has been turned into take justice from them and give it to me.

    People who couldn’t get jobs in the “rust belt” were encouraged to MOVE to the “sun belt” decades ago. Population segments have moved to improve their lives for millennia. Mexico has moved a large segment of its population into America seeking improvement.

  2. OK. So you’re terrified of freedom. Someone else might win. Oops! All men were created equal, not the outcome of their lives. Every person on the planet has been disappointed for some aspect having to do with their physicality. Too bad. So sad. Some gotta win, some gotta lose, but good time Charlie’s got the blues.

    Oh yeah, you’re a real capitalistic, risk taking wealth creator who wants to eliminate the dynamics of the marketplace which, by the way, eliminates freedom. Oh you missed that, huh? In order to be free, we have to be self-reliant and suffer the physical axiom that the “Lord giveth and the Lord taketh away” (that from an atheist, FYI). People have taken care of their finances through all kinds of economic and financial conditions; it takes a little more discipline and a little less partying. Again, it’s called self-reliance. Did the cavemen run down to the unemployment line, the welfare office and take food stamps – what did those poor cavemen do other than find a way to survive. Nothing wrong with the CHARITY industry operating in free and open markets. Nothing wrong with helping people through activities in the private sector.

    You’re right the banking industry has been skewed by democrat legislation including the power infused into the Fed which was intended to be a simple, industry-supported watchdog, not the world’s economic MASTER.

    Oh what a tangled web we weave, when first we practice to deceive. Because of Marxist egoism and intervention it’s getting tangleder and tangleder. Mr. Market knows all and will outlive everyone (after the apocalypse, let’s all meet at the crossroads with our corn and pigs and apples and implements and deerskin couture and we’ll get some capitalism started).

    After monarchy, the best idea was for intelligent, capable, ambitious and successful citizens, who ran businesses, created jobs and cared about the state, to elect representatives, not allow the reign of parasitism and chaos. The military is run pretty well, considering its mission. Is that done through one man, one vote democracy? I think not.

    In the context of the era, slavery was an economic issue which should have been addressed in that sphere. Zero dollars an hour is vastly accretive to the bottom line. The world could have brought sanctions to bear, boycotts would have been a good place to start but NO, Lincoln had to kill a million people. Good idea, that!

    Lincoln didn’t understand that states have a right to secede. Correct me if I’m wrong but Ronald Reagan loved the secession that occurred related to the Soviet Union and I guess we have a moral obligation to start a war with Rootin’ Tootin’ Putin because he and his confederacy in Crimea believe in secession – look out, Ukraine, secession is coming to a town near you.

  3. RB Shea,

    The Founders established a restricted vote republic and did not intend a one man, one vote “democracy” or dictatorship of the proletariat. Majority rule through voters that meet criteria was considered better than a monarchy. One man, one vote “democracy” was thought chaotic. Perfection is a fool’s game. At some point, you have to do the best you can with what you’ve got.

    Affirmative action simply substitutes one evil for another. Merit must be the sole criterion for school admission. Academia is not a beauty contest. The education industry should exist in the private sector and be honed to perfection through competition.

    1. Ah yes, John. The sacred Founding Fathers; Jesus and the 12 Apostles. Oh, wait, got the texts mixed up. You meant the mostly wealthy, all white plantation owners, business guys, assorted intellectuals and lawyers, many of whom owned slaves. So therefore “a government of the people, by the people” and “all men are created equal” actually refers to people…men…who looked like and shared the economic class because, you know…merit. Everything’s been downhill ever since.

      Certainly explains why slavery was allowed to continue, even later affirmed 7-2 by the SCOTUS in its Dred Scott decision because of course Chief Justice Taney and the majority were wise “constitutional textualists.” And the Civil War was a liberal plot back when misguided Republicans were fighting racism and aboilitionists were domestic terrorists who didn’t understand the Founding Fathers (we know there were no Founding Mothers, of course.)

      Yep that ol’ evil affirmative action sure substitutes one evil for another. Of course, that doesn’t apply to “legacy” admissions and families who can afford tutors for the ACT and SAT, those who can live in school districts with well-funded (by the state usually as well as locally) school systems…that’s meritocracy at work.

      I’ve worked in the private sector. Built my own business, worked for and retired from a Fortune 200 multi-national, taught at the university level, so I’ve seen the wonders of the “private sector” up close. Once I even offered to be CEO for a year. Said I’d do it for only $ 1 Million and no stock options. A tenth of what they were paying the CEO at the time as the company started to tank. Figured I couldn’t do any worse, might do better and either way, would save shareholders some money.

      Why, the brilliance of the private sector has been on display throughout our history. I’m grateful for the roads and bridges that sectors built, the water ways, dams and infrastructure it built without any messy government interference. And what about the wars fought by that grubby proletariat but because well that’s what peasants are for? You know, all that flag-waving glory to protect United Fruit, Rockefeller’s mining interests, the oil industry…advancing democracy? Hell, no that’s private enterprise at work.
      And there’s even more evidence of the private sector’s brilliance in the 2008 financial boom. Oops, sorry. Bust. And that bailout of banks by the public sector was necessary of course to protect those private sector entrepreneurs and their bonuses because, y’know…merit. Want to know more? Read Kevin Phillips, that noted left winger who worked for Nixon. His “Wealth and Democracy” documents how America was built and how the private sector 1% have always gotten that way through public money.

      Yes, a “free market” is great when you own one. It’s so meritorious.

  4. David, of course it’s unlikely that a case would be brought to SCOTUS that clearly challenged the 15th Amendment. Another strawman argument. Of course such a situation is remote and, at least currently, not politically tenable for the right wing. And it’s not relevant of course to the original point about the racial discrimination denial elements reflected by the Roberts majority in the Michigan case, contrasted with the dissent from Justice Sotomayor.

    As a fan of Justice Scalia, it should be clear to you as it is to other legal minds that his “constitutional textualism” is something he, and his fellow conservative activist Justices, apply with considerable and selective jesuitical flexibility. “Constitutional texualism” is the judicial version of Biblical literalism who proponents ignore the texts (and precedents) that don’t fit their beliefs.

    So…when the states put in further Jim Crow-lite barriers to voting under the guise of preventing non-existent voter fraud or expand gerrymandering to isolate and reduce the impact of minority voting, to me there’s little doubt that Scalia, Alito, Roberts and Thomas will vote to allow that based on some “constitutional textualism” that suits their ideology masked by legalese.

    1. rbshea, you seem to be under the delusion that Republicans and conservatives want Jim Crow laws back. That is a lie taught by the Democrats. Republicans were responsible for putting the Fifteenth Amendment in place, and we mean to keep it there. Republicans have always fought against slavery and for civil rights. We mean to keep fighting that fight. We have not abandoned civil rights just because the Democrats have said so in order to get people to join their party.

      This particular case is a furtherance of that fight, and Scalia and others have come out on the right side of this issue, arguing that States can take action to prevent the kind of racial discrimination that is caused by affirmative action. Your implication that they secretly hope to overturn the Fifteenth Amendment through some kind of sophistry is misguided.

      1. Delusion? David, facts seem to indicate that, rhetoric aside, you’re the one who’s delusional.
        Yes, the Republican Party pre-Nixon helped advance civil rights, particularly in the ’60s with the 1964 Civil Rights Act under the leadership of Lyndon Johnson. Oh, wait. I forgot. LBJ wasn’t a Republican. Then, with the defection of the “Dixiecrats” to the GOP (remember Strom?) and Nixon’s Southern strategy followed by Reagan then Bush the First (see Lee Atwater, Willie Horton), today’s GOP has moved steadily to erode the voting power and economic opportunities for minorities, not to mention restricting women’s access to health care. The evidence for that is in those states controlled by the GOP.

        I guess minorities and many young people haven’t gotten the message about how the GOP is fighting for civil rights and economic opportunity. For example, check out the voting results from 2012 by demographics. And the RNC’s “autopsy” report. Not that the Party seems to be paying attention to its own report.

        But rest assured, I’ve no illusions about the Democrats today. Beginning with Bill Clinton and his entourage such as Rahm Emanuel and Robert Rubin, their rhetoric has outstripped the reality of their pandering to the same financial interests as the GOP and the Roberts SCOTUS. They just don’t have the Koch brothers and Adelson to fund ’em. Not that they wouldn’t like it, now that the SCOTUS has made one dollar one vote officially the “law” of the land.
        These days, there really is only one political party with two wings: The Money Party.

        But please spare the rhetorical jujitsu about Republicans “fighting that fight” so states can take action to “prevent the kind of racial discrimination the is caused by affirmative action.” I’m still laughing at that one.The ol’ “reverse racism” meme, eh? Must be the same logic behind the GOP fights for policies such as cuts to the SNAP program because, you know, those working poor and lazy unemployed need to work harder…like all them bank CEOs, and other corporate welfare recipients.

      2. Here’s some “sophistry” to ponder. Eisenhower and JFK both used Federal powers…troops in fact… to advance civil rights and racial justice. What would today’s GOP / Fox “News” and the SCOTUS have to say about that if it were to happen today in the face of the “states rights” re-emergence. Just check to rhetoric at the NRA Convention in Indianapolis if you want a hint.

      3. Last one. No doubt because the Constitution doesn’t specifically provide for the right to access a toilet at voting places, Florida’s GOP governor and legislature’s response to requests for such access particularly for the disabled as required by the ADA was simply another example of preventing discrimination. That response? It’s chronicled here courtesy of Jim Hightower.
        “No one can deny that voting is a civic duty, right?

        Well that depends on who you are. The reality is that many powerful people don’t want certain folks to vote. They go to extremes to discourage those folks from voting and even harass them to keep away from the polls.

        In 2012, Florida’s highest officials disgraced their offices by engaging in this thuggish electoral thievery. Republican Gov. Rick Scott and his party’s legislative henchmen officially rammed voter suppression into law, targeting Latino, African-American, student, elderly, and other voters likely to favor candidates running on the Democratic Party’s ticket.

        Florida officials are making such people use broken-down voting machines and purging them from voter rolls. Many folks in Democratic-leaning precincts faced procedural chaos and up to six-hour waits. That rigmarole deterred at least 200,000 Floridians from casting their ballots.

        But now this discouragement has hit a new low.

        Advocates for people with disabilities had asked whether restrooms in Miami-area polling places would be accessible to voters in wheelchairs or having other physical needs. They expected to get “yes” for an answer, as required by the Americans with Disabilities Act.

        Instead they got this jaw-dropping response: “In order to ensure that individuals with disabilities are not treated unfairly, the use of restrooms by the voters is not allowed on election day.”

        Yes, in a perverted twist of logic, “fairness” to people with special needs will be assured by treating everyone unfairly. Thus, the biological need to pee will trump the political right to vote. This is no small matter, given that some Floridian voters waited in line six hours or more during the 2012 elections.”

  5. As I observe that the biology of autism is no more nor less of the biological (in terms of genotypes, phenotypes, and their relationships) diversity that has made the human species possible than is the biological minimax problem of the relationship of sunlight with skin cancer and rickets (by which I mean skin melanin pigmentation).

    If the biological minimax problem of rickets and skin cancer has caused humanity to have diverse, inherently competing and conflicting, races, surely the human race to learn to be truthful is also racial? (Pun intended…)

    If there are human races, then, in my view, there is the autistic race, of which I am an avowed and identified member, and there is the neurotypical race, of which I am not a member.

    In my observation, it is the autistic race that is well-ahead of the neurotypical race, in racing toward the goal of human honesty through achievable integrity.

    What if there really is no race, and what if there really are no races…?

    If there really are no races, surely there are no races to be won or to be lost?

    O Death, where is thy sting?

    O Grave, where is thy victory?

  6. Great point David. An attorney should have never made such an uninformed comment.

  7. rbshea,
    I agree with most of what you have written. I think this case is a stark example that racism is alive and well in America. Doesn’t this case allow any State to vote on refusing blacks entirely, if taken to its extreme?
    Do you think an unprecedented 400 plus filibusters by McConnell and company is not obstructionist? The only way to prevent and stop money from controlling the system is to remove the money from the system.

    1. rafflaw wrote: “Doesn’t this case allow any State to vote on refusing blacks entirely, if taken to its extreme?”

      Of course not! The U.S. Constitution prohibits race discrimination. The point is that race discrimination can happen in the affirmative as well as the negative. This case says that the voters of a State can vote to prohibit race favoritism.

      I am not a fan of McConnell or obstructionism. However, the filibuster is a legitimate concept for giving the minority voice in the legislative process. I don’t think requiring a 10 vote majority to bring cloture is unreasonable, and there is always the nuclear option to keep it in check.

      1. Couple points.
        First: the filibuster hasn’t been what’s been used by McConnell and the obstructionists. It is the threat of using it that, thanks to the spineless Majority leader, has been allowed to bottle up or stymie the majority. Requiring a “super” majority to pass legislation or approve appointments is not a Constitutional requirement but simply a Senatorial “club” rule. It is akin to the secret blocks on appointment considerations or legislation.
        Therefore, clever, legalistic political posturing isn’t the same thing as negotiating in good faith to give a minority a “voice” it already has but is political tactic used to silence the voice of the elected majority. It also affords that minority the luxury of not having to actually filibuster or propose alternative policies that require that minority to do more than pontificate when facing voters. It does however allow political contributions to flow from the interests who benefit from that minority obstruction and supports the ideological view that government doesn’t work by proving it.

        Second, your assertion that the US Constitution prohibits racial discrimination is a red herring, a rhetorical feint, in light of the ruling’s actual effect, beside it being another full employment card for lawyers. The premise that a state’s voter majority on a referendum determines what is and is not legally permissible is at the heart of this SCOTUS majority’s “reasoning”.

        1. RB Shea, I grant you that filibustering can be abused. I told you I was against obstructionism and was not a fan of McConnell. Nevertheless, the filibuster rule is good in that it better allows for the minority viewpoint to have a hearing on a matter. Even when the issue is voted down anyway, it is good democracy to allow the minority to voice their opinion before the vote rather than after the vote. I think the rhetoric about filibustering being bad is blown way out of proportion. Those who scream the loudest against the filibuster rule are tyrants who want to do what they want without caring who understands why.

          As for the Constitution prohibiting racial discrimination, that is NOT a red herring. If this case involved Michigan disenfranchising black voters, the decision would have been very different.

          So you have a problem with the premise that a State’s vote determines what is and is not legally permissible? Really? I thought the people’s vote is what is at the heart of democracy. It sounds like you prefer a pure oligarchy over a democracy. You apparently prefer the wisdom of 9 Justices outside the State over the fair vote of the people.

          1. You must be a lawyer, David. You ignored the fact that actual filibustering isn’t what’s been happening in the GOP Senate minority and the resultant “voice” drowns out the will of the majority which you seem to favor at the State level given your reference to it.
            The Civil Rights Act had to be enacted…after decades of protest, assassinations and murders… because of state’ voting what was/is legally permissible there by the “fair vote of the people.” With today’s “9 Justices outside the State”, that Act would have been overruled. And, it’s not unlikely that, it won’t be long before that happens in whole or part based on the legal “reasoning” at work by Roberts, Alito, Scalia and Thomas with Kennedy joining in if the spirit moves him as it has on money as “free” speech. So your statement that if the case had involved obvious vote disenfranchisement there would have been a very different outcome has to be either an attempt at humor or deliberately naive.

            1. rbshea, I am a big fan of Justice Scalia’s constitutional textualism. The Fifteenth Amendment of the U.S. Constitution is very plain and clear.

              “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Amendment XV

              There is NO WAY that Justice Scalia or any of the other Justices would support racial voter disenfranchisement by any State. The legal process for that would require a Constitutional Amendment revoking the Fifteenth Amendment. I have no doubt that the SCOTUS would return a unanimous 9-0 vote against any effort to disenfranchise voters on the basis of race or color. This is not an attempt at humor.

  8. For someone who is at least as familiar with system dynamics modeling (such as may be done with system dynamics computer software, such as Vensim or Stella) as I am, it is plausibly very simple to devise a model of causal loops and a model of stocks and flows, and test whether it is possible to model any government in the form of a democracy which will not eventually self-destruct.

    Some of the folks who invented the U. S. Constitution were, methinks, rather aware of democratic government’s inherent self-destructive nature, and, in an attempt to solve the problem of democracies not being sustainable, came up with the notion of a representative republic in which representatives (members of Congress and members of the Executive) were chosen through a form of quasi-democratic method.

    Alas, that approach has (tragically?) shown itself to be not especially much more sustainable than any prior version of democracy.

    Why so?

    I find the predicament to be one harbored within the domain of theoretical biology (the core of my research work as a bioengineer), and theoretical biology has not yet sufficiently evolved enough to make solving the enigma of the inevitable collapse of democracies practicably achievable.

    I have found it plausibly useful to re-read Gordon W. Allport, The Nature of Prejudice, Addison-Wesley, 1954, and Gordon W. Allport, The Nature of Prejudice: Abridged Edition, Anchor Books, 1958, with the goal of learning whether a better understanding than I have previously had, of the nature of prejudice, might become worthwhile.

    Chapter 13, in both editions, is named, “Theories of Prejudice.” Fibure 11, in both editions that I have, gives six “methodological approaches” to inquiry into the causation mechanisms of prejudice, namely:
    1. Historical approach
    2. Socio-cultural
    3. Situational
    4. Approach via personality dynamics and structure
    5. Phenomenological
    6. Approach via stimulus object

    While I find that all six of those approaches have merit, I find that they are, taken as a whole, profoundly incomplete. To Allport’s six methodological a approaches, I find I need to add a “zeroeth” causation mechanism, to wit:
    0. Pre-historic approach

    How can pre-historic events be accurately identified if they are not to be found in the historic record?

    The good news is that the pre-historic events are in the historic record, as though in the form of echos of pre-history. To find those echoes, it is apparently necessary to accurately observe them. Observation being of recognition and noting, accurate observation requires “looking” for something where it actually is, recognizing said something as what it actually is, and accurately noting what was recognized.

    Looking for something where it isn’t seems to me to be an amazingly productive methodology for generating tragically illusory correlations.

    I find that I live as though in a society which declares my right to exist as a person, while society’s procedures unrelentingly attempt to preclude my right to exist.

    For those who “believe in” dividing humanity into “races” (I do not so believe), I propose dividing humanity into two races according to my experience of hateful prejudice oft flung at me. One race is “neurotypical,” and the other race is “autistic.”

    My field work research data hints at the neurotypical race being made of about 98 percent of humanity and the autistic race being made of about 2 percent of humanity, and my field work study sample is now of somewhat more than 3000 individual humans.

    For those who may have looked at my dissertation, on the web site of the University of Illinois at Chicago, and who deemed my research approach to be unscientific, I herewith call attention to an article in the April, 2014, issue of “Current Directions in Psychological Science,” William R.Shadish, Statistical Analysis of Single-Case Designs: The Shape of Things to Come.

    The abstract of that paper:

    “Single-case-design researchers rarely used statistics in the past,but that is changing. In this article, I review the rapidly developing state of statistical analyses for single-case designs, including effect sizes, multilevel models, and Bayesian analyses. No analysis meets all the desiderata for an optimal single-case-design analysis, but this may be remedied in the near future. Single-case-design researchers will have incentives to use these analyses as they become more user-friendly and beneficial.”

    My doctoral dissertation was written to satisfy, and to only satisfy, the five members of my doctoral thesis committee. Only one of my committee members (my graduate school adviser, Earl E. Gose) was sufficiently well versed in Bayesian methodologies as to effectively understand the way I combined frequentist and Bayesian statistical approaches; therefore, all of the statistical stuff in my dissertation was stated in word equation form and not in numerical equation form. Furthermore, my dissertation is a metadata study of the collection of single-case-design studies of my thesis field work.

    The statistical methodology of my thesis was carefully engineered to meet all the desiderata which I was able to recognize of an optimized metadata study of single-case-design research about the nature of prejudice, of which the nature of the practice of contemporary adversarial law is evidently, alas, a pre-historic existential artifact.

  9. Law Students generally have no agenda and look at the law in simplistic and concert patterns of building stones. That’s why they usually get the results of the law correct. Excellent analysis and good luck with the future.

  10. These 2 students have the potential to become the type of attorney I would hire. I have worked w/ and against, thousands of attorneys over the years. Maybe 5% I would hire.

  11. Ms. Butler argues both for and against majority rule. One of the things a lot of states have learned from the federal government is that if you want to control the legislatures, boards, etc. you put it in the state constitution. Arizona was one of the first to vote for medical marijuana, but it got overturned by a federal court. Then we did again. Now like the Keystone Pipeline the state is taking its time setting up procedures for dispensaries.
    I have always felt that the constitutions of the various states are designed to protect the majority from the minority. But Ms. Butler would like the constitution to protect the minority from the majority. Other than individual rights, I cannot agree with that, even when I am in the minority.

  12. RB Shea wrote: “… a totally obstructionist GOP Senate …”

    You apparently misspoke. It has been a totally obstructionist DEMOCRATIC Senate. However, based upon your obvious stated bias, I think you meant to refer to the GOP House of Representatives.

    1. No, David. I didn’t misspeak. While the GOP majority in the House has been spending its time passing repeals of the ACA, the McConnell-led Senate has been holding up Obama judicial appointees, among other executive appointments, which resulted in Harry Reid…finally and too late to be meaningful…invoking the “nuclear option.”

      And you’re right. I am biased… in favor of a legal and political system that money can’t buy which is no longer the case in the US, thanks in no small measure to the current Supreme Court.

      1. The McConnell-led Senate? Mitch McConnell is the Minority leader. The Majority leader is Democrat Harry Reid. The constitutional leaders are Democrats Joe Biden (President of the Senate) and Patrick Leahy (President pro tempore). You should question your bias when you consider a Democrat-led Senate a GOP led Senate.

        I agree with your desire to have a political system that money can’t buy. The only way to do that is to cut their budget. With trillion dollar budgets, all kinds of people want to control a piece of that money. You are fighting human nature. Whether it is government or corporations, increase the amount of money involved and people who love money control that system. If you think that the GOP are the only bad actors here and that the Democrats are squeaky clean and uninterested in money, you are being extremely naive. The Democratic party is far worse. As a matter of public policy, Democrats seek to increase the money stream into government as high as possible.

        1. My bad, David. I meant to say GOP Senate minority strategy/tactics of obstruction. A strategy noted and documented in reporting going back to Obama’s first inauguration.
          I don’t have any illusions about the Democratic Party, particularly since Clinton turned it into Republican-lite which Obama has, sadly, continued. My view is that today, thanks in no small measure to this SCOTUS, we have only one party rule: the Money Party. Today’s GOP has no problem providing corporate welfare to Big Pharma, Big Energy, Wall Street and banksters and the war industry while demonizing immigrants, the poor and minorities including the elderly.
          And, thanks to the corporate-owned media’s compliance, there is no “news”, only marketing the same tired themes of one side says this, the other that when in fact those “sides” are on the same coin.
          And now that the SCOTUS has joined the Money Party as an unabashed enabler, the die is cast for oligarchy replacing what was once an aspiring democratic republic, replaced by kabuki posturings. A new Gilded Age, defined elsewhere in detail, has arrived.

  13. Cirilli’s argument is more persuasive. Butler has a point that democracy favors the local boards over a statewide referendum, but pushing the decision even higher up the government hierarchy to the Supreme Court would be even worse in this regard. As Cirilli points out, it puts the decision in the hands of 9 Justices rather than the voters of the State. Furthermore, Butler speaks of the job of SCOTUS to defend “Constitutional rights,” but she fails to identify exactly what right she is talking about. There is no constitutional right to affirmative action.

  14. I’m not a lawyer but the convolutions of SCOTUS “thinking” in the Michigan case are simply the latest example of how language,especially legalese, can be used to rationalize any opinion, masking or reflecting the underlying intent or shallowness of the reasoning. For me, this Michigan decision is simply another outcome of the Roberts majority’s political agenda, aided in this case by the bizarre “logic” of Stephen Breyer.

    The outcome clearly supports a devolution of Constitutional law to pre-Civil War thinking on “states rights” versus Federal authority. It will serve as a benchmark to support the impact of gerrymandered GOP/rightwing redistricting that already is rolling back women’s access to health care and hard-won minority voting access.

    With Roberts, Alito and Thomas in place for the next twenty years and a totally obstructionist GOP Senate, the oligarchy will become entrenched as never before. It may be an intellectual game for lawyers and law students but for most citizens who aren’t in the 1%, this Court is handing out decisions designed to undermine actual democracy, as the outside-of-court behavior of Scalia and Thomas demonstrate.

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