Playing with models

Posted: Jul 03, 2003 12:00 AM
When he was running for president, George W. Bush frequently held up Antonin Scalia and Clarence Thomas as his ideal Supreme Court justices. They are excellent choices, because they read the Constitution and interpret what is actually there. That, of course, is what Supreme Court judges ought to do.

But Washington Post columnist David Broder doesn’t think so. Broder took Scalia to task on June 29 for not seriously considering social issues in his decision-making. Scalia had taken issue with the majority opinion in Grutter v. Bollinger, the decision that will allow the Michigan law school to continue using affirmative action in admissions. He correctly pointed out that it will lead to racial discrimination.

Broder wrote: “Virtually all of the majority and dissenting opinions in the divided court displayed serious jurists wrestling with an issue that tests not just legal principles but also fundamental social values.”

Scalia’s dissent, however, was, “was sarcastic, dismissive, polemical and smug.” How so?

Broder writes that during oral arguments, Scalia “had told Michigan’s counsel that if the law school was so hellbent on including more minorities, it should simply lower its admission standards -- a stunningly patronizing and insulting comment.”

But how is that patronizing? Isn’t that the whole idea behind affirmative action?

Minorities say they can’t compete unless affirmative action gives them a hand up. John Payton, the lawyer for the university, admitted as much during oral arguments. “We have very small pools of African Americans that are qualified to the extent that we require students to be qualified to do the work at the University of Michigan,” Payton said. Jesse Jackson admitted it, too, when he lauded the Court’s ruling: “Today’s historic decision confirms the wisdom of leveling the playing field for all Americans.”

 As my Heritage Foundation colleague Dana White observed, these days black tell other blacks they’re not good enough to compete without assistance from affirmative action. That’s sad. But it’s not patronizing or insulting to point it out.

 Justice Scalia also wrote that the lessons the university is seeking to provide by building a diverse student body are best learned by “people three feet shorter and 20 years younger than the full-grown adults at the University of Michigan law school, in institutions ranging from Boy Scout troops to public-school kindergartens.”

 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.