Is That Legal?

Oddly enough, I was thinking the same thing yesterday, though my idea was to ask which opinions in Endo he would have joined, and why.

The easy out for a question on Hirabayashi would be to harken back to Jackson's dissent in Korematsu.

BTW, what is your take on Murphy's concurrence in H.?

I don't know about this approach. I kind of prefer Sen. Schumer's approach, of trying to make Bush nominees swear a blood oath attesting to the iron clad intellectual integrity of the Griswold & Roe cases - seems to me this is a more honest approach, and gets to the crux of the the Dems' interests.

Poser for you though, Eric: You are obviously against ethnic profiling. Where do you stand on race based pluses and minuses in higher ed admissions standards? Considering both questions are answered under the same 14th Amend. Equal Protection Clause fundamental rights/strict scrutiny analysis, I'm wondering where you come down. I have trouble distinguishing the two situations, personally, save by the sleight of hand that in admissions you're only favoring a particular race, whereas in profiling, you're discriminating against a particular race. I call that a sleight of hand because it ignores the effect of the law on the unseen "other" - which receives and equal and opposite benefit/burden.

Al, I'm not opposed to all ethnic profiling in principle; for exceedingly pressing purposes, ethnic profiling that can be cabined to a minimally intrusive or burdensome intervention would be OK with me. (Don't you just hate it when "liberals" don't say exactly what you want them to say?)

I don't trust ethnic profiling in practice because I don't trust government and its agents to confine themselves to minimally intrusive interventions.

I have difficulty with using race and ethnicity as pluses and minuses in higher ed admissions, but I come down as mildly in favor of it for several reasons that I won't detail right now because I don't have time.

The suggestion that ethnic profiling of minorities and racial/ethnic "pluses" for minorities must be treated the same because they're both judged under the same legal standard is mere formalism for its own sake, in my view. Yes, they're both governed by Equal Protection. But the Equal Protection Clause has never had too much trouble distinguishing between rules that burden majorities and rules that burden minorities, and I don't either.

It doesn't seem to me that any profiling which is only "ethnic" would be adequately narrow to be useful without being unjust.

Well, first, I didn't expect you to say anything in particular, I was just asking your opinion.

Second, I believe your ability to distinguish between rules that burden majorities and those that burden minorities must be more developed than mine; I'm under the impression that, statistically, Asian-Americans are the group which is by far the most burdened ethnic group under race based preferences in higher education. In addition to the figures made public during the Gratz & Grutter litigation, the demographic changes in the UC system in California during their top 10% experiment would seem to bear this out. Is the distinction here one of intent - measures favoring one minority group that incidentally burden both the majority and/or other minority groups, are permissible?

The preferences issue is of some interest to me, because Asian-American voices are often among the most prominent boosters of preferences, yet individuals of that ethnicity are far and away most likely to be burdened by preferences, especially at the 150 or so "tier one" colleges and universities.

Eric:

Aren't Korematsu and the recent affirmative action case the only existing cases where strict scrutiny was applied and the statute survived? Given how loose the tailoring was in the law school case, I'd expect you to have deeep concerns about it. We have to assume that national security is at least as compelling as diversity in universities, and if security profiling can be done as loosely as universities do their profiling, a lot of liberties are at stake. My guess is that while O'Connor is on the Supreme Court, the affirmative action case will be treated as sui generis and not applicable in any other area of society, but once the court's composition changes the result can be used in very troubling ways.

Eric, you might ask your friends over at Volokh Conspiracy -- particularly David Bernstein -- what they think of your question to the nominee. I understand from a recent article DBernstein's written on Bolling v. Sharpe (SCt outlaws segregated DC schools as a violation of 5th A due process) that, in the late 19th and early 20th century, the Supremes -- and many others -- read the term "due process" to mean accross the board application of laws, so that any law singling out a particular group for unequal treatment violated DP. If I understand DBernstein correctly in his recounting of 19th Century DP jurisprudence, that view of the DP clause -- which I assume could have far reaching effects -- would make Hirabayashi DEAD WRONG. (Would that view of the DP clause make any law favoring/burdening a particular group over everyone else illegal?)

Just a thought.