ReportWire

Tag: oral arguments

  • How Democrats Could Disqualify Trump If the Supreme Court Doesn’t

    How Democrats Could Disqualify Trump If the Supreme Court Doesn’t

    [ad_1]

    Updated at 9:13 a.m. ET on February 28, 2024

    Near the end of the Supreme Court’s oral arguments about whether Colorado could exclude former President Donald Trump from its ballot as an insurrectionist, the attorney representing voters from the state offered a warning to the justices—one evoking the January 6 riot that had set the case in motion.

    By this point in the hearing, the justices had made clear that they didn’t like the idea of allowing a single state to kick Trump out of the presidential race, and they didn’t appear comfortable with the Court doing so either. Sensing that Trump would likely stay on the ballot, the attorney, Jason Murray, said that if the Supreme Court didn’t resolve the question of Trump’s eligibility, “it could come back with a vengeance”—after the election, when Congress meets once again to count and certify the votes of the Electoral College.

    Murray and other legal scholars say that, absent clear guidance from the Supreme Court, a Trump win could lead to a constitutional crisis in Congress. Democrats would have to choose between confirming a winner many of them believe is ineligible and defying the will of voters who elected him. Their choice could be decisive: As their victory in a House special election in New York last week demonstrated, Democrats have a serious chance of winning a majority in Congress in November, even if Trump recaptures the presidency on the same day. If that happens, they could have the votes to prevent him from taking office.

    In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility. But during oral arguments, liberal and conservative justices alike seemed inclined to dodge the question of his eligibility altogether and throw the decision to Congress.

    “That would be a colossal disaster,” Representative Adam Schiff of California told me. “We already had one horrendous January 6. We don’t need another.”

    The justices could conclude definitively that Trump is eligible to serve another term as president. The Fourteenth Amendment bars people who have “engaged in insurrection or rebellion” from holding office, but it does not define those terms. Trump has not been convicted of fomenting an insurrection, nor do any of his 91 indictments charge him with that particular crime. But in early 2021, every House Democrat (along with 10 Republicans) voted to impeach Trump for “incitement of insurrection,” and a significant majority of those lawmakers will still be in Congress next year.

    Edward B. Foley: What the Colorado oral argument missed

    If the Court deems Trump eligible, even a few of his most fervent Democratic critics told me they would vote for certification should he win. “I’m going to follow the law,” Representative Eric Swalwell of California told me. “I would not object out of protest of how the Supreme Court comes down. It would be doing what I didn’t like about the January 6 Republicans.” Schiff, who served on the committee that investigated Trump’s role in the Capitol riot, believes that the Supreme Court should rule that Trump is disqualified. But if the Court deems Trump eligible, Schiff said, he wouldn’t object to a Trump victory.

    What if the Court declines to answer? “I don’t want to get into the chaos hypothetical,” Schiff told me. Nor did Representative Jim Clyburn of South Carolina, who served in the party leadership for two decades. “I think he’s an insurrectionist,” he said of Trump. Minority Leader Hakeem Jeffries, who would become speaker if Democrats retake the House, did not respond to questions sent to his office.

    Even as Democrats left open the possibility of challenging a Trump win, they shuddered at its potential repercussions. For three years they have attacked the 147 Republicans—including a majority of the party’s House conference—who voted to overturn President Joe Biden’s 2020 victory. More recently they’ve criticized top congressional Republicans such as Representative Elise Stefanik, the House GOP conference chair, for refusing to commit to certifying a Biden win.

    The choice that Democrats would face if Trump won without a definitive ruling on his eligibility was almost too fraught for Representative Jamie Raskin of Maryland to contemplate. He told me he didn’t know how he’d vote in that scenario. As we spoke about what might happen, he recalled the brutality of January 6. “There was blood all over the Capitol in the hypothetical you posit,” Raskin, who served on the January 6 committee with Schiff, told me.

    Theoretically, the House and Senate could act before the election by passing a law that defines the meaning of “insurrection” in the Fourteenth Amendment and establishes a process to determine whether a candidate is barred from holding a particular office, including the presidency. But such a bill would have to get through the Republican-controlled House, whose leaders have all endorsed Trump’s candidacy. “There’s absolutely no chance in the world,” Representative Zoe Lofgren, a California Democrat who also served on the January 6 committee, told me.

    In late 2022, Congress did enact reforms to the Electoral Count Act. That bill raised the threshold for objecting to a state’s slate of electors, and it clarified that the vice president, in presiding over the opening of Electoral College ballots, has no real power to affect the outcome of the election. But it did not address the question of insurrection.

    As Republicans are fond of pointing out, Democrats have objected to the certification of each GOP presidential winner since 2000. None of those challenges went anywhere, and they were all premised on disputing the outcome or legitimacy of the election itself. Contesting a presidential election by claiming that the winner is ineligible, however, has no precedent. “It’s very murky,” Lofgren said. She believes that Trump is “clearly ineligible,” but acknowledged that “there’s no procedure, per se, for challenging on this basis.”

    Quinta Jurecic: The Supreme Court is eager to rid itself of this difficult Trump question

    In an amicus brief to the Supreme Court, a trio of legal scholars—Edward Foley, Benjamin Ginsberg, and Richard Hasen—warned the justices that if they did not rule on Trump’s eligibility, “it is a certainty” that members of Congress would seek to disqualify him on January 6, 2025. I asked Lofgren whether she would be one of those lawmakers. “I might be.”

    (After this article was published, Lofgren issued a statement to “clarify” her position. “I would consider objecting to the electoral vote certification under the Electoral Count Act if the Supreme Court rules that the 14th Amendment required such action despite the Electoral Count Act,” she said. “I am not considering objecting prior to the Supreme Court issuing its decision and if the decision provides that path legally.”)

    The scholars also warned that serious political instability and violence could ensue. That possibility was on Raskin’s mind, too. He conceded that the threat of violence could influence what Democrats do if Trump wins. But, Raskin added, it wouldn’t necessarily stop them from trying to disqualify him. “We might just decide that’s something we need to prepare for.”

    [ad_2]

    Russell Berman

    Source link

  • Justice Jackson’s Crucial Argument About Affirmative Action

    Justice Jackson’s Crucial Argument About Affirmative Action

    [ad_1]

    Yesterday, an hour and a half into the marathon hearings about whether colleges can use race as a factor in admissions decisions, Justice Ketanji Brown Jackson began to rub her temples as she looked down at her notes.

    “We’re entertaining a rule where some people can say what they want about who they are and have that valued in a system,” she said. “And I’m worried that that creates an inequity in the system with respect to being able to express our identity.” Black and Latino applicants would be limited if they can’t express their race in the selection process, she said. She almost laughed with exasperation. “Is that a crazy worry or is that something I should be thinking about and concerned about?”

    In previous arguments this term, Jackson was a forceful voice on issues of racial discrimination and the intent of the constitutional amendments designed to protect against it. For many in favor of race-conscious admissions, she has been a welcome presence on the Court, asking, in a way, the question at the center of the cases: Have less than 50 years of affirmative action put enough of a dent in the inequality fostered over more than two centuries of racial discrimination in higher education to merit eliminating the practice?

    From the September 2021 issue: This is the end of affirmative action

    For roughly five hours, the Supreme Court heard oral arguments in cases of Students for Fair Admissions, a coalition of unnamed Asian American students brought together by the conservative legal strategist Edward Blum, against the University of North Carolina and Harvard. If the cases are successful and the justices side with SFFA—which a majority of the justices seemed quite open to in their questioning yesterday—the decision would overturn the precedent established in Regents of the University of California v. Bakke in 1978, which has been upheld for more than 40 years. Because of her previous tenure on Harvard’s Board of Overseers, Jackson recused herself from the Harvard case and sat for only the UNC case. But she did not waste the time she had.

    Although relatively few colleges are selective enough to have reason to consider race in admitting students, there is significant evidence about what happens at those schools when such programs go away. Michigan and California, for example, saw precipitous declines in Black enrollment at their flagship campuses after those states banned the practice. (By SFFA’s own estimates, described during oral argument, Black enrollment at Harvard would fall from 14 to 10 percent without affirmative action.) In some ways, that’s the backdrop to Jackson’s questions. She was driving toward a fundamental statement about what the programs are for: Race-conscious admissions are designed to help students get into college, not to exclude students as a result of their existence.

    Jackson’s point is well worn. In 1978, during the oral arguments in the Bakke case, Justice Thurgood Marshall identified it. In an exchange where he prodded Reynold Colvin, who argued for the plaintiff, Allan Bakke, Marshall pointed out, “You’re arguing about keeping somebody out and the other side is arguing about getting somebody in.” Colvin agreed. “So, it depends on which way you look at it, doesn’t it?”

    Once again, Colvin agreed. “It depends on which way you look at the problem,” Colvin said.

    Marshall’s voice changed. “It does?” he said, with a rise in inflection.

    “The problem—” Colvin began to say before Marshall cut him off.

    “It does?” Marshall said, frustrating Colvin. “You’re talking about your client’s rights; don’t these underprivileged people have rights too?”

    Yesterday, Jackson was less direct, but no less potent, in an exchange with Patrick Strawbridge, the lawyer for SFFA. She offered a hypothetical to emphasize her point. There are two applicants who would like their family backgrounds recognized. One writes that their family has been in North Carolina since before the Civil War, and that if they were admitted to the university, they would be a fifth-generation student there. The other student is also a North Carolinian whose family has been in the state since before the Civil War—but their ancestors were enslaved and, because of years of systemic discrimination, were not allowed to attend the university. But now that they have the opportunity, they would like to attend. “As I understand your no-race-conscious-admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.” Both applicants were qualified, Jackson offered, but the first applicant’s qualifications could be recognized in the process, whereas “the second one wouldn’t be able to [get credit for those qualifications] because his story is in many ways bound up with his race and the race of his ancestors.”

    Lee C. Bollinger and Geoffrey R. Stone: The end of affirmative action would be a disaster

    Strawbridge thought for a moment, then offered that UNC does not have to give a legacy benefit to the first applicant if it doesn’t want to. This is true, but it was not Jackson’s point: “No, but you said it was okay if they gave a legacy benefit.” Race, she said, would be the only thing that couldn’t be considered under that program. And that would disadvantage the Black student who, in a similar set of circumstances, wants “the fact that he has been in North Carolina for generations through his family” considered.

    In a day filled with questions about the meaning of “true diversity” or the educational benefits of diversity, Jackson’s questions cut through the muck. Some students had historically been denied access to some of the nation’s most well-resourced institutions of higher education—feeder campuses for prominent roles throughout society–because of their race. If SFFA wins, that fact will be one of the only things a university cannot consider in its admissions process, as though that history never happened—as though the system is fair enough already.

    [ad_2]

    Adam Harris

    Source link

  • Supreme Court Justices Signal Willingness To End Affirmative Action

    Supreme Court Justices Signal Willingness To End Affirmative Action

    [ad_1]

    Topline

    The Supreme Court appears poised to outlaw affirmative action policies that take race into account in university admissions, as the court’s conservative justices signaled during oral arguments Monday that they’re open to ending the practice in favor of “race-neutral” admissions—even as the court’s liberal justices asserted its importance.

    Key Facts

    Justices heard arguments Monday from activist group Students for Fair Admissions arguing that affirmative action policies violate the 14th Amendment’s equal protection clause, with the first case centered on the policy at the University of North Carolina.

    Conservative justices including Amy Coney Barrett and Chief Justice John Roberts suggested that applicants could make up for not having their race directly taken into account by writing essays showing how they’ve overcome racial discrimination, or similar steps showing how their racial background helps their application versus just “ticking a box.”

    Roberts suggested forcing schools to get rid of their affirmative action policies could be “an incentive for the university to truly pursue race neutral alternatives” that could still be effective in promoting diversity, and Justice Brett Kavanaugh pointed to the fact that some states have already gotten rid of affirmative action and can still “produce significant numbers of minority students on campuses.”

    Justice Neil Gorsuch questioned what the difference is between encouraging diversity and racial quotas in admissions, which the Supreme Court previously ruled in 1978 are not permissible.

    Justice Clarence Thomas pushed back when North Carolina Solicitor General Ryan Park argued diverse groups “perform at a higher level”—saying he “[doesn’t] put much stock in that” because he’s heard similar arguments about segregation—and Justice Samuel Alito questioned the value of checking a box on race in the first place.

    The court will also hear a second case Monday concerning the affirmative action policy at Harvard University.

    Chief Critic

    The court’s liberal justices pushed back heavily Monday against attorney Patrick Strawbridge, who argued on behalf of the challengers. “I thought part of what it means to be American … is that our institutions are representative of who we actually are, in all of our variety,” Justice Elena Kagan argued in favor of policies that would encourage diversity, acknowledging that top universities “are the pipelines to leadership in our society.” Justice Ketanji Brown Jackson, who is recusing from the Harvard case but participated in the UNC case, argued there isn’t sufficient evidence to show that students were admitted solely based on their race, or that the students represented by Students for Fair Admissions weren’t admitted solely because they were from more overrepresented racial groups. Not allowing minority applicants to express their race, while still having other factors taken into account, “seems to have the potential of causing more of an equal protection problem than it’s actually solving,” Jackson also argued.

    Big Number

    41.5%. That’s the approximate percentage of U.S. universities that take race into account when determining admissions, according to a study by the National Association for College Admissions Counseling that Harvard cited in a court brief, as well as 60% of more selective universities that accept 40% or fewer of their applicants. At least nine states—Arizona, California, Florida, Idaho, Michigan, Nebraska, Oklahoma and Washington—already have policies that don’t allow affirmative action in university admissions, according to the National Conference of State Legislatures.

    What To Watch For

    The Supreme Court likely won’t rule for a few months on the two affirmative action cases. If the justices do side with the challengers, it could have wide-reaching implications for schools across the country. Harvard has argued in court briefs that taking race out of its admissions process would reduce enrollment of Black students at the school from 14% to 6% of its student body, and Hispanic enrollment from 14% to 9%. The University of Michigan, which had to adopt race-neutral policies after a state ballot measure abolished affirmative action, said in a court brief that as a result, its Black population decreased by 44% between 2006 and 2021, even as Michigan’s population of college-aged African Americans increased, and the Massachusetts Institute of Technology argued getting rid of race in its admissions would result in the “denial of talented prospective scientists and engineers with exceptional promise.” That lack of diversity could have broader-reaching implications: MIT noted it would result in marginalized groups becoming further unrepresented in science and engineering fields, while Harvard noted it would also lead to a 14% drop in the number of students at the university studying humanities subjects. A coalition of smaller liberal arts colleges pointed to research arguing that exposure to diversity “improves learning experiences, problem-solving and critical-thinking skills, and interpersonal and leadership skills,” among other benefits.

    Key Background

    The Supreme Court agreed to take up the affirmative action cases in January after lower courts sided in both cases with the universities and found their admission policies do not violate federal equal rights protections. Affirmative action was first established through an executive order in 1965 that told employers to “take affirmative action to ensure that equal opportunity is provided in all aspects of their employment,” and the Supreme Court then upheld the policy in a 1978 ruling finding universities could consider race as part of its admission process. It then further affirmed the practice in rulings in 2003 and 2016, though the latter ruling was narrowly tailored to the specific policy at the University of Texas that was at issue. Critics of the policy argue affirmative action is unfairly discriminatory against white and Asian American applicants, who are more overrepresented in applicant pools as compared with Black and Hispanic students.

    Tangent

    Solicitor General Elizabeth Prelogar also argued on behalf of the Biden Administration that affirmative action should be upheld Monday. Prelogar argued that cutting off race-based admissions would negatively impact the federal government and the U.S. military by impacting the diversity of people who get admitted to service academies or to the military through ROTC programs at universities. The pipeline from ROTC programs and service academies is “critically important,” Prelogar argued, noting that the military promotes from within and people who get admitted through university programs now will affect “the closed universe of people who will be eligible for leadership in the military in 20, 30 years time.”

    Further Reading

    Affirmative Action Could Soon Be Overturned As Supreme Court Takes Up Harvard And UNC Cases (Forbes)

    In cases challenging affirmative action, court will confront wide-ranging arguments on history, diversity, and the role of race in America (SCOTUSblog)

    A Timeline of Key Supreme Court Cases on Affirmative Action (New York Times)

    In Clash Over Affirmative Action, Both Sides Invoke Brown v. Board of Education (New York Times)

    [ad_2]

    Alison Durkee, Forbes Staff

    Source link

  • The College-Admissions Merit Myth

    The College-Admissions Merit Myth

    [ad_1]

    Tomorrow, the Supreme Court will hear oral arguments in two cases that could end America’s experiment with affirmative action in higher education. The challenges to the admissions programs at Harvard and at the University of North Carolina at Chapel Hill—both brought by Students for Fair Admissions, a coalition of unnamed students assembled by the conservative legal strategist Edward Blum—argue that the institutions discriminate against Asian American students, and that eliminating the use of race in admissions would fix the problem.

    Lower courts have rejected SFFA’s arguments, leaning on more than 40 years of precedent that says the use of race in admissions is permissible in narrow circumstances. “Harvard has demonstrated that no workable and available race-neutral alternatives would allow it to achieve a diverse student body while still maintaining its standards for academic excellence,” Judge Allison Burroughs wrote in her 2019 opinion. But SFFA pressed on, and now the case sits before a conservative Supreme Court that has shown a willingness to overturn well-established precedents.

    Richard D. Kahlenberg: The affirmative action that colleges really need

    In her new book, Is Affirmative Action Fair? The Myth of Equity in College Admissions, Natasha Warikoo, a sociologist at Tufts University who has spent years examining race-conscious admissions, assesses the positions of those for and against affirmative action, and argues that we’re asking the wrong questions about how students get into college. By exalting merit, Warikoo warns, Americans have developed a skewed perception of the process—a perception that leads to challenges such as the one before the Court.

    I spoke with Warikoo about her book, the Supreme Court hearing, and how we can better understand admissions.

    This conversation has been edited for length and clarity.

    Adam Harris: You write, “When we recognize the diverse goals that universities attempt to address through college admissions, it becomes clear that admission is not a certification of individual merit, or deservingness, nor was it ever meant to be.” Can you expand on that idea? Where do we have flaws in our understanding of college admissions?

    Natasha Warikoo: In the past, it was like “We want to have a bar.” You had to have some demonstration that you could handle the work that we’re going to give you. And some of that was exclusionary. It was like “Can you pass the Latin test?” Well, most schools didn’t teach kids Latin, so it’s not that that was fair—it was “You’re going to be doing Latin; do you know Latin?”

    But now, when we’re talking about super-selective places—there are more than 200 of them, so not just the Ivies, but also not most colleges—they have so many different interests that are playing into who they’re admitting. You’ve got the sports coaches who are trying to get their recruits; you’ve got the development office that gives a list and says, “These people have done a lot for this university—make sure you take a close look at that”; there’s the humanities departments who want to make sure there are people interested in the humanities, not just in STEM; the orchestra’s bassoon player may have graduated, and now the orchestra needs a bassoon player. So, there are all these different things that are going on, and the admissions office is trying to fulfill all these different interests and needs.

    But ordinary people treat admissions as, you know, they’re lining people up from best to worst and taking the top ones, and if one of these says they’re not coming, then they take the next person. Well, that’s not how it works. They’re fulfilling organizational needs and desires. But somehow, we treat it as a prize—and whoever is most deserving gets in.

    Harris: That plays into the broader idea in America around merit, and the way that we’ve oriented our society around merit. How do merit and the idea of fairness work together to give us the wrong idea about admission systems?

    Warikoo: In all of these international surveys, when you look at respondents’ belief about whether people should be rewarded for merit over other things, Americans are much more likely to say yes than people in most other countries. A lot of modern societies believe in these ideas of meritocracy, but the United States is especially attached to the idea. We have this belief that some people are deserving—and the unspoken idea that some are undeserving. And there’s a sense of entitlement, like I did all of these things; I deserve a spot at these places.

    But we should stop treating college admissions as if everybody is on an equal playing field and that the person who is the smartest, the most hardworking, the one with the most grit, is the one getting in. Instead of arguing about how affirmative action goes against our ideas of meritocracy, we should look at what colleges are actually trying to do.

    Harris: Well, let’s talk about affirmative action. How has it been viewed since Justice Lewis Powell accepted the diversity rationale in the Regents of the University of California v. Bakke case in 1978?

    Warikoo: There’s a whole industry of research that develops after that decision to really try to dig into the impact of a diverse learning environment: What is the impact of having a roommate of a different race, going to a college that is diverse, being in a class with students who are a different race? And this research shows all these benefits: Groups make better decisions; students have more intellectual engagement; they improve their racial attitudes. There are even some findings that show a positive impact on civic engagement down the line. A student may not even have a diverse set of friends, but if they’re on a diverse campus, there seems to be some kind of impact.

    So, all of this research shows these positive effects, and those data have been used in subsequent court cases defending affirmative action. But in the public conversation, many people recognize that it’s also an equity issue.

    Harris: In 2003, Justice Sandra Day O’Connor said the Court expects that 25 years from now, the use of racial preferences will no longer be necessary. And that’s what a lot of opponents of affirmative action say now: It may have been justified in the past, but it’s no longer necessary—and if we need something, we might be able to find a proxy. Are there proxies for race in admissions?

    Warikoo: The legal requirement is that when you’re using these suspect categories such as race in a policy, you have to show that there’s no other way that you could do things instead. And it’s pretty clear that there’s no good stand-in for race. We can use class, and class is important. But I don’t see these as either-or. The Georgetown law professor Sheryll Cashin has looked at zip code as a stand-in, and it’s pretty clear that such an approach is not going to have an impact on the numbers of underrepresented minority students on campus. Because, you know, the overwhelming majority of people in the United States today are white. The majority of people who are poor in this country are white. So you’re not really going to racially diversify by looking at class.

    Colleges have tried different things, such as the Texas “10 percent plan.” The research suggests that these other ideas are somewhat helpful, but the problem has been that graduation rates can go down when you’re just using a percent plan. And it’s not a stand-in for race-based affirmative action.

    We can look at the data from the states that have banned affirmative action to understand that they have not figured out a stand-in. We see declines in every state, year on year, of the number of underrepresented minorities when affirmative action gets banned.

    Harris: One of the through lines in the book is the purpose of higher education. What can colleges do better to be more honest about their goals?

    From the September 2021 issue: This is the end of affirmative action

    Warikoo: One is being careful about how they talk about admissions. And when you dig into their language, many schools say that they’re looking to build a class, and that everyone makes a unique contribution. But they’re still publishing acceptance rates. There are so many ways in which the language they use buys into this idea that they are a place of excellence. This is the best class ever, you’re told when you’re a freshman.

    When you have these elite colleges in which the student body comes from more resourced families than the average across 18 year-olds, it’s not just the best of the best. Your family’s resources play a role—whether you have parents who went to college, whether you grew up in certain neighborhoods or went to certain schools. Two-thirds of American adults don’t have a bachelor’s degree.

    But I keep coming back to the question of What are we trying to do here? Our spending in the U.S. on higher education is regressive. The most elite colleges accept students who are the highest achieving and most resourced. But who needs the most support? When you look at what community colleges are doing in terms of social mobility, they blow places like Harvard and Tufts out of the water. Colleges should think much more about the role they want to play in our society, and how they should align admissions to those goals.

    Harris: As I got toward the end of the book, where you talk about solutions, a couple of things really stuck out: the sort of anti-inclusive instinct that a lot of institutions have in terms of increasing their enrollment, where they don’t want to increase enrollment because that may upset alumni who attach value to the selectiveness of their institution. Or, if there were an admission lottery, families of high achievers may be frustrated. And my takeaway was: There’s really nothing the institutions may be able to do that is going to make everyone happy, so maybe they should just do what’s just.

    Warikoo: Yes. There are so many more amazing 18-year-olds in our country—deserving, hardworking, ambitious, smart, whatever superlative you want to use—than there is space for them at Harvard, at UNC, at any given school.

    But we have to stop acting like you deserve it and you don’t deserve it. It’s not about who deserves it. And that’s why I talk about a lottery system, because it implies you don’t deserve this more than anyone else—you got lucky. It already is luck: that your parents could afford to buy a house near a school that had a college counselor, or you had a tutor who could help you with your essay, or you went to a school with a crew team and you got recruited for crew—all kinds of things. It is luck. Why not call it what it is?

    [ad_2]

    Adam Harris

    Source link