A Point About Race-Conscious Admissions in Higher Education

From the What-A Day newsletter

There’s an elephant in the room that none of the conservative Justices nor anyone railing against affirmative action seems to want to discuss: legacy students. A 2019 report from the National Bureau of Economic Research showed that 43 percent of White students admitted to Harvard from 2009-2014 were either recruited athletes, legacies, applicants on the “dean’s interest list” (aka the children of wealthy donors) and children of faculty and staff. More pointedly, a whopping 75 percent of the White students admitted under those privileged categories, particularly legacies, would have been rejected had they not been given those bonus points. The acceptance rate for legacy students at Harvard is about 33 percent, compared with the school’s overall acceptance rate of under six percent. But the Edward Blums of the world deem this kind of affirmative action acceptable.

What a Day Monday, 2022/10/31

Pack it

The reason I would have been reluctant to pack the Supreme Court is fear of setting a precedent. It would have been the idea that if we do this, then they’ll do that, and we don’t want to start down that path.

That fear is nullified because I no longer believe that any restraint on the part of Democrats will influence Republicans. No courtesy that we extend will be reflected in kind. No attempt to preserve our norms and traditions will make Republicans regard those norms and traditions with reverence.

Quoting a friend on social media

“We should expect nothing but bare-knuckled realpolitik from Republicans from now on; we have to stop being shocked. This is the reality of the GOP moving forward. Nothing is sacred to them, even the sanctity of the vote or the stability of the republic.”


Some Republicans still put the United States above Trumpism, but they no longer drive the party. It is no longer an exaggeration that Trump could shoot someone on 5th Avenue. They are murdering us in the streets.

I no longer fear setting dangerous precedents with Republicans. Now I fear not setting them.

Christian Heritage and Legislative Authority

Despite all of the memes on Facebook about how your boss’s religion trumps your personal rights, the Hobby Lobby ruling isn’t so much about bosses, employees, or even religion as it is about the legislative authority of Christians and those of Christian heritage pretending to be Christian. To illustrate that fact, Huffington Post ran a farcical article listing different activities, such as public sex and the use of hallucinogens, that could happen now that we abide by laws “a la carte”. But it’s hard to imagine anything on that list coming to pass unless well connected Christian conservatives claim that it must pass lest their Christianity be overburdened. And it can’t be just any Christians. The Huffpo article also mentions unpasteurized milk, the distribution of which the Amish have not been successful in legalizing despite it being against their beliefs to withhold from others food that they consume themselves.

The owners of Hobby Lobby like to present the appearance of towing the right wing Christian line, but their hypocrisy, as reported by Mother Jones, proves that it’s all for show. In addition to investing in companies that violate their fake principals, Hobby Lobby also sells tons of cheap trinkets imported from China, and doing business with China is no way to keep your hands clean of indirectly supporting non-Christian practices.

Based on Hobby Lobby’s non-Christian dealings and the fact that nobody from Hobby Lobby’s owning family would ever be forced to directly purchase the products that they object to, I don’t believe that anybody at Hobby Lobby felt that God would have been angry at them for violating his commandments. I believe that they objected to being told what to do by a president who doesn’t show due reverence to their Christian heritage.

Rallying behind the cross isn’t about religion, except for a few true-believers who have been duped into thinking that Christianity is compatible with the right wing agenda. Rallying behind the cross is about heritage, and what we’ve seen, more than once now, is that sometimes heritage is more important then merit when it comes to being heard by this Supreme Court.


My wife shared this facebook update from Steve Marmel. If you’re not going to read the whole thing, at least skip down to the paragraph which begins “The senate was recalled 90 minutes after …”, to get a sense of how corrupt the Texas legislature is, while keeping in mind that Texas is one of the states which is now free to supress votes, since it was deemed that singling out corrupt governments for “heavy requirements” is unfair.


Even though I don’t know exactly where it came from. It’s a repost of a repost from someone named Arséne DeLay.


Last night something very important happened down in Texas, something that if you weren’t following as it happened, you’re probably not going to hear the whole truth about. I was one of the people who was in the right place to watch, and so I’m now going to try to pass on the word as best I can. I’m tagging some of you at the bottom, people who I think should read this. Apologies for anyone who finds this disruptive.

The Texas senate voted yesterday on an bill that essentially would have closed nearly every abortion clinic in the state. To try to counter the bill (which was heavily supported by the Republican majority, senator Wendy Davis attempted a one-woman day-long filibuster, during which time she spoke on the subject while going without food, water, bathroom breaks or being allowed to sit down or even lean on her table for support. She lasted nearly eleven hours before being ruled off topic on a technicality. A second female senator then stepped up and tried to continue the filibuster by asking for salient points to be repeated to her, as she missed part of the session that day to attend her father’s funeral.

But here’s where things get interesting. With fifteen minutes before the midnight deadline, the lieutenant governor ordered the senate to proceed, and actually had the democrats’ microphones cut off. The spectators in the assembly responded by cheering, chanting and generally causing a ruckus, in order to drown out attempts at a vote. The midnight deadline passed without a vote being taken, but the chair held a vote after midnight, as the spectators were forced out of the assembly. During all of this, THERE WAS NO COVERAGE on MSNBC, CNN or any other major news network, with the only coverage coming from a livestream set up by the Teas Tribune.

At 12:15, THW ASSOCIATED PRESS RAN A STORY SAYING THE BILL HAD PASSED, WHICH CBS PICKED UP. This was based on a SOLE SOURCE, which the AP later admitted was A REPUBLICAN SENATOR. Meanwhile in the chambers, the senators stood around, both sides confused if the vote had even happened, if they had even voted on the correct issue. The chair had left with the lieutenant governor without ending the session. The Tribune’s FEED WAS CUT at 12:20 with 70,000 PEOPLE WATCHING. CNN AT THIS POINT WAS TALKING ABOUT THE DELICIOUSNESS OF MUFFINS.

Outside in the halls of the senate building, thousands of people were packed wall to wall, chanting “shame, shame”, while thousands more were outside. State police had formed a barricade around the entrance hall, and were making sporadic arrests (50 or so by night’s end) and confiscating cameras. In the thick of it was a guy named Christopher Dido, who used his CELL PHONE AND A LIVE STREAM to report on what was happening. He was THE ONLY JOURNALIST IN AMERICA who was filming at the senate, with as many as 30,000 people watching the stream at one time, and OVER 200,000 VIEWERS BY NIGHT’S END. He did this while the state police surrounded the protesters in the building, some of them with nightsticks drawn. The police at this time refused to let through food or water that people tried to send in, instead eating and drinking it themselves. They also barricaded access to vending machines and water fountains within the building, and were said to have blocked off access to the washrooms for at least a period of time. Meanwhile, journalists still inside the chambers tweeted out news updates, which were disseminated and retweeted by people like Matt Fraction, Felicia Day and Will Wheaton, reaching an audience that would otherwise have probably not seen or heard what happened next.


The senate was recalled 90 minutes after its midnight end point, to determine whether or not the vote was valid- behind closed doors with no microphones, and only the Senate’s own muted camera. Then something disturbing happened. The senate website carries the official record of the caucus. It listed the vote as happening past midnight, on June 26th. Until suddenly it didn’t. THE DATE WAS QUIETLY MANUALLY CHANGED TO 6/25, THE MINUTES ALTERED TO SAY THE VOTE HAPPENED AT 11:59, despite almost 200,00 people watching live who saw differently. Suddenly twitter and other social media sites blew up with before-and-after screen shots. Inside the closed sessions, the democrats were made aware of the alterations and brought them up- without social media, almost no one would have known, and never in time. Ultimately, based on the fraudulent alterations, the GOP conceded defeat, admitting the vote had taken place at 12:03, and declaring the bill to be dead. When this happened, the AP and CBS said the vote was overturned, never admitting to shoddy journalism. CNN ignored the story until this morning, because muffins take priority.

Yesterday, I witnessed women’s rights under fire, a crippled legal system that didn’t represent its people, a corrupt government body attempting to commit a crime in front of hundreds of thousands of witnesses, and THE COMPLETE FAILURE OF THE MAIN STREAM MEDIA. I also witnessed a woman performing a nearly superhuman act to do what was right, the power of the people making themselves heard both in person and online, and the extraordinary value of one young man with a cellphone making sure people saw and heard the truth about what was going on.

ANYONE READING THE PAPERS OR WATCHING NETWORK NEWS TODAY WON’T GET THE FULL STORY. Hopefully enough people saw it unfold live, that the lessons from last night won’t be forgotten.

I’m Still Thinking about Impeachment

I know how happy I’m supposed to be with the Supreme Court approval of the health care mandate but little has changed when it comes to talking about impeachment for Supreme Court Justices who act more like politicians than constitutional interpretors. Justice Scalia has provided more than enough examples of his willingness to alter his opinions to meet the Republican agenda, Justice Thomas weighed in on the health care mandate despite a strong and clear financial conflict of interest, and Justice Roberts produced a convoluted opinion based more on threading a political needle than on providing an honest interpretation.

I’m glad that ACA passed but it should have passed under the commerce clause just as the Obama administration argued. The U.S. government has the right to regulate commerce. Health care is a fifth of our economy, a vital service on which our very lives depend, and has costs which have been rising out of reach for an increasing number of Americans because the wealthiest are willing and able to pay so much for it. It’s clearly under the purview commerce, but after the Affordable Care Act passed in congress, an idea emerged, the explanation of which could easily be followed by the phrase, “yeah, that’s the ticket!”. The idea was that the mandate was unconstitutional because it tells us what to do, instead of telling us what not to do. It was dismissed as ridiculous at first, but not wanting to overlook any opportunity to cause the president to fail, conservatives eventually began to support the ridiculous challenge.

There were no honest grounds for the challenge, and conservatives knew it. As Brad Delong explains, referring to Republican Governor Mitt Romney’s health care plan on which the ACA was modeled, and a similar “mandate” proposed by Republican president George W Bush,

No office-holding Republican complained that RomneyCare was bad policy, or would destroy the economy, or would be unconstitutional, or whatnot–for it was the signature policy initiative of a Republican governor. The mandate that was at its core? That was the conservative Personal Responsibility principle. And remember the centerpiece of the Bush administration’s Social Security privatization proposals: it was an individual mandate to regulate “inactivity”: to require that people who had not established their own private individual retirement accounts do so.

Had the issue of “inactivity” reached the justices in the form of a challenge to a Republican mandate to purchase retirement accounts rather than a Democratic mandate to purchase health insurance, the Republican justices would have voted the other way.

But when the same Republican policy became the signature policy initiative of a Democratic president, every single Republican in office changed their mind.

But despite the lack of any legal basis, conservatives pushed the idea. The CATO institute, always ready with an argument to protect the secure from the needy, said, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause.”

But it isn’t a radical departure. Consider two of the important historical cases which considered during the deliberations: Wickard vs Filburn and Gonzolez vs Raich. In the first, Roscoe Filburn was told that he couldn’t grow his own wheat (beyond a certain acreage) to feed his own chickens, because doing so effected commerce in wheat, and in the second, Angel Raich was told she couldn’t grow marijuana for her own medical use, even though her doctor said it might save her life and it was legal under California law.

In his opinion, Chief Justice Roberts wrote:

The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sus-tained under a clause authorizing Congress to “regulate Commerce.”

Conservatives contend that in earlier cases, the citizen’s activity was restricted, not mandated. But that argument isn’t completely true. The government didn’t expect Filburn to starve his chickens, they expected him to buy wheat. If he wasn’t expected to buy wheat when told he couldn’t grow his own, then growing his own would have had nothing to do with commerce. And Angel Raich, who can’t grow her own pot, is forced to purchase whatever medicine the marijuana would have replaced.

Technically, Filburn and Raich weren’t mandated into commerce, but realistically they were. So five Supreme Court justices made a falsely grounded interpretation based on a technicality in order to support a political attack on the president and on the millions of people who will be helped by affordable health care. Justice Roberts, of course, came halfway back and found a tricky way to support the ACA while apparently hoping to appease his conservative peers by upholding the silly technicality.

One crazy aspect about this situation is that right wingers are correct in saying that the commerce clause has been stretched beyond its written scope and used to justify actions that have nothing to do with commerce. But the decision of the Supreme Court, that the commerce clause can’t be used for a mandate, does nothing to reign in the abuses of federal power. A mandate to enter into commerce doesn’t effect my freedom nearly as much as a restriction on what I can grow on my own property; especially when the restriction prevents me from growing my own medicine to save my own life, and especially if I can opt out of the mandate for religious purposes.

If the conservatives on the Supreme Court wanted to reign in the overreach of the commerce clause, they would have to have chosen a case other than one which is clearly about commerce.

I’m not supposed to have a fit when the Supreme Court makes a decision that I don’t agree with, and in this case it made a decision that I do agree with. But the five justices who tried to strike down the ACA, including the one who changed his mind half-way, were motivated by politics rather than jurisprudence. And while there’s no chance of unseating any of those judges, the specter of impeachment might keep justices in line in the future.

The Mandate is No Big Deal. Defeating it Would Have Been

I keep reading that requiring us to do something, as opposed to requiring us to not do something, is a new step, and conservatives are sounding alarms all over the internet that freedom died as a result of the Supreme Court upholding the health care mandate, and that we’ve crossed a line into government mandated oblivion. But the health care mandate is not the first mandate. Several months ago the story of George Washington’s gun mandate was making the rounds. Other examples are in a discussion about the draft, posted by Greg Sargent, and in a post in Daily Kos about a railway case, which quotes NLRB v. Jones & Laughlin Steel (1937):

The decree which we affirmed in that case required the railway company to treat with the representative chosen by the employees and also to refrain from entering into collective labor agreements with any one other than their true representative as ascertained in accordance with the provisions of the act.

In other words, the railway company was required to do something, and face penalties for not doing it.

With all of the power that the federal government already has, much gained with the support of right wing ideologues, the idea that this power to enforce a mandate represents a bold new step seems petty and hypocritical. The court didn’t grant any new power, it affirmed power that already exists and refused to carve out a special exception. It should have affirmed this power under the commerce clause, as argued by the administration. As a Kos commenter noted, referencing Gonzales v. Raich:

Growing pot on your patio to smoke yourself is clearly interstate commerce, but a central issue facing any effort to reform a sector that occupies 18% of our economy, well that’s just going too far.

But instead, the Supreme Court affirmed the power as falling under the power to tax. Either way, the power was there.

If freedom died, it died long before the Affordable Care Act. It was dead on or before 1942, when Roscoe Filburn was told that he couldn’t grow his own wheat for his own use because doing so interfered with interstate commerce. So don’t blame Obama.

Abuses of eminent domain and laws against personal use of home-grown medicine are examples of overreaching government that I’m all for rolling back, along with all of the Monsanto and factory-meat friendly laws which make it almost impossible for a small farmer to legally sell his product. But I don’t want to go back to the days before equal rights, national fire codes, child labor laws and environmental protection.

Unlike eminent domain abuses, invasive drug laws, and overregulation of home-made produce and meat, the Affordable Care Act won’t prevent us from doing things that we’re free to do. There are plenty of examples of over-regulation and abuses of federal power. But we didn’t suddenly become unfree last Thursday and we didn’t cross a line into new territory.

There are plenty of ways for Americans to become freer. Allowing health care companies to keep increasing the cost of health care isn’t one of them.

Reasonably be Characterized

My wife and I raise animals for meat. We occasionally grow fond of a certain animal and decide not to eat it. That animal can “Reasonably be Characterized” as a pet, because certain rules of pets apply to it. But other rules don’t apply, and therefore we don’t consider it a pet. And I’m not a big liar when I tell you that it isn’t.
Sow and Piglets

Talking About Impeachment

Assuming Justice Scalia’s new opinion about Wickard vs Filburn is what it appears to be, which is a convenient lie to explain why he is more loyal to ideology than to his own constitutional interpretations, then he should be impeached. He won’t be, of course, but as Nathan Newman points out

Talking about impeachment, however, is a way to label this right-wing Court majority as the partisan tool of corporate right-wing interests that it has become.

That the constitutional question about the health care mandate is nothing but a partisan, political, attack on the President is belied by the fact that ideologues who are leading the attack once supported such a mandate. That Justice Scalia plans to go along with the ruse appears to be indicated by timely reversal of opinion about a Supreme Court case which he once supported.

We can’t read Scalia’s mind to determine if he’s shaping his beliefs to support an agenda, but we can look at the evidence. While agreeing with Wickard vs. Filburn should coincide with support for the Affordable Care Act, proclaiming Wickard a mistake isn’t necessarily preparation for declaring ACA unconstitutional. And if Scalia ends up supporting ACA, it would be pretty strong evidence that his change of heart about Wickard was genuine.

But if Justice Scalia votes down ACA, despite his previous opinion which lays groundwork for supporting it, than it would appear that he is willing to flip on his beliefs in order to support political goals. That would not be good behavior for a Supreme Court justice, and would be reason to bring up the conversation about impeachment.

Talking about impeachment now will likely have no immediate effect, but it may reduce political influence on the Court in the future.