Prison v. College: The Supremes Dig Themselves Into A Deeper Hole

Unfortunately, the Supremes have proved themselves incapable of, among other things, following the common sense advice, “When you’re in a hole, stop digging.”

By a 5

Say What? (21)

  1. Richard Nieporent February 24, 2005 at 5:44 pm | | Reply

    All I can say is that they should have had Abbott and Costello write the opinion. It would have been much easier to understand.

  2. Alessandra February 24, 2005 at 8:57 pm | | Reply

    I’m writing for a different reason than the post, but it was just simple to write it here. I haven’t been following your blog for too long, but I have hardly seen anything regarding age discrimination.

    by coincidence, today, on my blog, I made a small comment on how serious a problem this is and I certainly would like to see a blog that decided to cover it more than randomly.

  3. Dom February 25, 2005 at 8:58 am | | Reply

    For the record, Thomas seems to be aware of the very same hypocrisy you are pointing to. This is what he wrote:

    “The majority contends that the Court [has] put the burden on state actors to demonstrate that their race-based policies are justified, and “[has] refused to defer to state officials’ judgments on race in other areas where those officials traditionally exercise substantial discretion.” Yet two Terms ago, in upholding the University of Michigan Law Schools affirmative-action program, this Court deferred to the judgment by the law schools faculty and administrators on their need for diversity in the student body… Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones. The potential consequences of second-guessing the judgments of prison administrators are also much more severe.”

    Remember when Harry Reid said that this man writes like an eighth-grader?

    DOm

  4. Alex Bensky February 25, 2005 at 10:03 am | | Reply

    I don’t think this opinion is illogical in comparison to Justice O’Connor’s reasoning in the Michigan cases.

    The people she defers to–administrators at so-called elite law schools and executives in large corporations–are people like herself and deserve deference. People who run prisons tend not to be graduates of Ivy League-type schools. Some of them may not even have college degrees.

    That sort of person can’t really be trusted to know what’s best and needs the guidance of social betters.

  5. actus February 25, 2005 at 10:20 am | | Reply

    “Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones.”

    The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities. Here its just pure administrative ease.

  6. Michelle Dulak Thomson February 25, 2005 at 12:29 pm | | Reply

    actus,

    The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities.

    Oh, but that’s not so, actus. At least, the stated rationale for affirmative action in higher education is to improve the lot of the majority, by supplying it with “diversity.” Whether the administrators believe sincerely in this rationale is open to question, but that’s the ground on which the Michigan cases were fought.

    Here it’s just pure administrative ease.

    I’m not sure about that, either, unless it be counted an aspect of “administrative ease” to minimize the number of violent altercations between new prisoners. I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which.

  7. Richard Nieporent February 25, 2005 at 12:44 pm | | Reply

    The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities.

    The white man’s burden can be so difficult. right actus?

  8. Scott February 25, 2005 at 1:30 pm | | Reply

    actus,

    if you take the prison officials at their word that they’re acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?

    It also seems not such a stretch to say this practice does improve the lot of minorities, at least those in the penal system. Since a common complaint regarding America’s prison system is the over-representation of minorities compared to their percentages in overall society, any practice that benefits ALL prisoners should benefit them even more.

  9. Dom February 25, 2005 at 3:22 pm | | Reply

    Thomas, again:

    “The potential consequences of second-guessing the judgments of prison administrators are also much more severe.”

    Nothing here about administrative ease. He obvious was concerned about violence.

    Dom

  10. actus February 25, 2005 at 4:03 pm | | Reply

    “At least, the stated rationale for affirmative action in higher education is to improve the lot of the majority, by supplying it with “diversity.””

    Fine then. Its still not administrative ease.

    “I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which.”

    Thats the “ease.” Sort them out quicker.

    “if you take the prison officials at their word that they’re acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?”

    Sure. There are other, more expensive (less ease) ways of achieving that goal.

    But I just found out that Thomas and Scalia didn’t apply strict scrutiny. Odd. Doesn’t seem consistent with their Michigan opinions.

  11. Michelle Dulak Thomson February 25, 2005 at 4:14 pm | | Reply

    actus,

    “I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which.”

    Thats the “ease.” Sort them out quicker.

    No, I think the idea was “sort them out before they attack one another,” actually.

    “if you take the prison officials at their word that they’re acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?”

    Sure. There are other, more expensive (less ease) ways of achieving that goal.

    Are there? Can you name one that wouldn’t itself be liable to legal challenge? I suppose you could put all new prisoners in 24-hr. solitary until you had found out their gang affiliations (if any), but don’t you think this would be challenged as “cruel and unusual”? Or were you thinking of a separate prison-run detective force that would do an extensive background check on all prospective prisoners (that is to say, anyone on trial, presumably) so that the gang affiliations would be ready to hand the moment they were convicted?

  12. Chetly Zarko February 25, 2005 at 6:07 pm | | Reply

    Actually, I think O’Connor got it right on this decision, although the way she got to it was convoluted. And even though I disagree with Thomas on this one, and I would ensure strict scrutiny for racial classifications in prisons, his writing and reasoning is crisp – I think this program, or a variation of it (perhaps more narrowly tailored), might survive strict scrutiny (certainly, prison violence is a more “compelling interest” than “diversity”). I think you can throw this one into the category, once again, of O’Connor making the most politically expedient decision (literally deciding not to decide by remanding it to the lower court for a narrow tailoring analysis).

  13. actus February 25, 2005 at 8:42 pm | | Reply

    “No, I think the idea was “sort them out before they attack one another,” actually.”

    My understanding is they eventually sort them by gang, and this is a temporary proxy.

    “Are there? Can you name one that wouldn’t itself be liable to legal challenge? ”

    They could make an individualized determination of what gang that person belongs to.

    “I suppose you could put all new prisoners in 24-hr. solitary until you had found out their gang affiliations (if any), but don’t you think this would be challenged as “cruel and unusual”?”

    You’ve got a very rosy view of how people get treated in prisons.

  14. David Nieporent February 25, 2005 at 9:38 pm | | Reply

    They could make an individualized determination of what gang that person belongs to.

    Sure. Just check their wallets for their gang membership cards. That will work.

    The difference is that in the University setting the administrator is acting not out of administrative ease

    Yes, he is. Race in admissions is used as a proxy for diversity, because it’s _easier_ to categorize people by race than to make individual assessments of their merits.

    But I just found out that Thomas and Scalia didn’t apply strict scrutiny. Odd. Doesn’t seem consistent with their Michigan opinions.

    Not especially inconsistent. You have a right not to be discriminated against by the government based on race… but when you go to prison, you forfeit most of your rights.

  15. Anonymous February 25, 2005 at 9:51 pm | | Reply

    “You have a right not to be discriminated against by the government based on race… but when you go to prison, you forfeit most of your rights.”

    Thats an interesting reading of the 14th. I would think you being entitled to equal protection of the laws doesn’t end when you have violated them.

  16. actus February 26, 2005 at 9:43 am | | Reply

    “The white man’s burden can be so difficult. right actus?”

    If only the ‘white man’s burden’ consisted of unduing the harms of past discrimination.

  17. Stephen February 26, 2005 at 9:12 pm | | Reply

    actus, that hair shirt’s got to really itch.

    Really, what is it that you think you accomplish with this awful self-abnegation? Who do you think benefits from it?

    Why, in short, do you do it? I’ve observed this act in white men for a hell of a long time. Can’t make heads or tails of it.

  18. actus February 26, 2005 at 10:06 pm | | Reply

    Whats the “self-abnegation” that you’re referring to?

  19. Stephen February 26, 2005 at 10:39 pm | | Reply

    The pathological, self-debasement. It’s such a pathetic act.

    You’re not doing anybody any good with it. It is a delusion on your part that this hair shirt act benefits anybody. It is an evil, condescending act in relationship to blacks.

    Or, perhaps I’ve missed something. Are you operating on this premise: All white men are racists except those (like you) who engage in the hair shirt act? If that’s the case, it’s even worse than I thought.

    This act of yours is not pretty. If you really feel this way, you’d be well advised to conceal it and hide away in a cubby hole somewhere. Why display such an attitude? It’s considered good form in most public situations to at least attempt to present one’s self in a positive light.

    And, it just makes my skin crawl to watch a white man behave this way. Godawful. Actually it makes my skin crawl to watch any man behave this way, but only liberal white men do it. Once again, why do you do it? A better question might be: why do you do it in public?

  20. Stephen February 27, 2005 at 12:20 am | | Reply

    Sorry, John, if this is out of the ambit of what you want to see in your weblog, but it really is unavoidable.

    Ward Churchill, who actus has cited as an original thinker, is not only an academic fraud, he is a plagiarist who steals other artist’s work, doctors it slightly, and resells it as his own.

    Forgive me, actus, but the act that you engage in can only lead to this. It’s an exercise in complete phoniness.

    http://sayanythingblog.com/2005/02/25/ward-churchill-artistic-plariarist

  21. actus February 27, 2005 at 11:48 am | | Reply

    “And, it just makes my skin crawl to watch a white man behave this way.”

    What race am I again?

    “Ward Churchill, who actus has cited as an original thinker, is not only an academic fraud, he is a plagiarist who steals other artist’s work, doctors it slightly, and resells it as his own.”

    Ya thats really bad. It still doesn’t prevent him from writing other books that I liked. I reccommend the one that attacks pacifists as pathological racists with fasle moral superiority.

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