Broder dismisses that as a “ridiculous contention,” but in fact, Scalia’s point makes a lot of sense. The reason African Americans need affirmative action when they get to the University of Michigan is because they’re not being taught what they need to know along the way.
According to the Department of Education, in 2000, the high school graduation rate for white students was 76 percent. For African Americans, it was 55 percent. The problem only gets worse in lower grades. The National Assessment of Educational Progress found that in 2000, 35 percent of white 8th graders scored at or above the “proficient” level, while only 6 percent of black students did. Blacks simply don’t do as well in school as whites do.
There’s no doubt that African American children are just as smart as white children. They’re capable of learning, but they’re not being taught what they need to know. If only those who are spending so much time, money and effort defending affirmative action would pour the same resources into improving education for African American children, they would probably catch up with their white peers within a few years.
Broder is so eager to lash out at Scalia he even misquotes him. He writes that in “the decision overturning the Texas anti-sodomy law, Scalia railed against ‘the so-called homosexual agenda’.” But that’s not what the justice did.
He wrote that the Court “is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” But, Scalia added, “let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”
Scalia did criticize the Court because it has “taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
Scalia, like Thomas, understands the limited role the Supreme Court should play. It should determine if laws or policies violate the Constitution. But it shouldn’t be in the business of expanding the Constitution by adding rights the justices wish were written there.
There won’t be a vacancy this summer. But when there is, Justices Scalia and Thomas should be the models for any president’s future Supreme Court nominees. We need more justices who believe in judicial restraint.