Thursday, October 07, 2021

Three Feet Shorter

When the Supreme Court upheld an affirmative action program at the University of Michigan Law School as pursuing the compelling state interest of "racial diversity", Justice Scalia was scornful. The values of diversity -- inclusivity, tolerance, learning to work with people across differences -- were best taught to students "three feet shorter and twenty years younger" than the typical law student.

Four years later, though, when the Court in the Parents Involved case considered programs securing racial diversity in primary and secondary schools, this logic disappeared. It turned out that Scalia and the conservatives didn't want to inculcate these values at a younger age; they just didn't want them inculcated at all.

I was thinking about this upon reading Ayaan Hirsi Ali's fusillade against "critical race theory" in primary schools. The scare quotes are appropriate, since as Ali concedes, the racial justice initiatives she objects to in primary education do not go by the name "critical race theory" even as the right labors feverishly to place them under the label. In a truly spectacular leap of logic, that the right calls things "critical race theory" that are not "critical race theory" is not evidence that they're simply making things up, but rather is demonstrative of the theory's proponents showing a "remarkable ability to shape-shift".

But I digress. Ali's main argument is that affirmative action programs have been "clear failure", listing off a bevy of racial inequalities that still exist in the fifty years following the civil rights revolution. Of course, the crit would suggest that this shows the problems of racism in America run deeper than a few diversity initiatives can fix; and even the non-crit might find it odd to see evidence of ongoing racial inequality mustered as proof that we need to think less about matters of racial inequality. But Ali, ever the iconoclast, puts the entirety of the blame on affirmative action itself -- specifically, Richard Sander's "mismatch" theory. Leave aside the various criticisms one might have of that theory. Its core logic is that, by the time we reach the point of a collegiate affirmative action program, it's too late to undo the failures of the primary educational system to provide the foundations and skills necessary for students of color to thrive in elite university settings. The intervention occurs too late in the day.

So the obvious implication is that we should be investing our energies earlier in the process -- concentrating on students when they are twenty years younger and three feet smaller. And yet, it turns out, Ali -- like her fellow conservatives -- doesn't support this either. In fact, they're even more enraged when the persons concerned about racial inequity begin focusing on the primary rather than the collegiate level (even though the "mismatch" arguments that nominally undergirded their objection to the latter have no relevance to the former). The objection, it turns out, has nothing to do with the when, but is entirely about the what: an ideological opposition to trying to dismantle racial inequalities in education -- no matter how tall or short the students may be.

Wednesday, October 06, 2021

The Constrained Constitution and the SALT Deduction

Yesterday, the 2nd Circuit rejected several states' challenge to the elimination of the "SALT" (State and Local Tax) deduction from federal income taxes (basically, allowing you to deduct state tax payments from your federal income). The elimination occurred under the Trump administration, and it was a savvy play -- it mostly affects "blue" states (which tend to have higher state taxes), and it mostly affects wealthy residents of those states (who pay the most in state and local taxes). One would not be wrong to suspect that the former concern predominated over the latter in terms of the Trump administration's logic.

Nonetheless, the Trump administration's potentially venal motives do not themselves make out a constitutional violation, and the Second Circuit here found none. That was so even though, as Jonathan Adler observed, from a purely partisan perspective the states drew a very favorable panel. It didn't matter -- there's no basis in the constitution for why any particular state is entitled to a particular tax regime, so the blue states lose.

I actually am, however, a bit curious as to how conservative legal observers explain this outcome by liberal justices. We often hear that only conservative-style originalism serves to "constrain" judges and prevent them from simply voting their partisan preferences. Yet these judges are not conservatives and, it seems fair to assume, were likely not fans of the Trump administration's gambit here. So what caused them to nonetheless reject the suit? The answer has to be something that constrains liberal judges from merely voting their policy preferences (at least some of the time) -- but the originalist/textualist apologia typically denies that said "something" can exist.

Monday, October 04, 2021

Billions Thoughts

But not quite billions of thoughts. Anyway, some spoilers for Billions, which just wrapped its (split) season five today.

  • The terms "pro-" and "antagonist" don't mean much on Billions, but whatever Mike Prince was this season -- foil? -- he never quite sold me. Rebecca Cantu was better. I do think, however, that Prince was well set up to be a good antagonist (fine, I'll use it) next season. Him trying to operate the remainder of (the former) Axe Capital from inside the belly of the beast is at least a new plot beat.
  • Didn't fully catch how it was the Wags beat his criminal rap (yes, they said he never signed the paperwork -- but was that just made up? Did they forge something? It seems everyone just gave up kind of quickly on that).
  • Not quite sure I get what they're going with re: Taylor's character arc. Is the idea that they're struggling to hold onto their humanity? Their idealism? Why did they suddenly seem so torn up about (seemingly) successfully taking down Axe? I don't know. The belated advice to Rian ("run") didn't really land for me, and Rian herself isn't a well-developed-enough character for it to matter that she seemingly decided not to "run".
  • Billions sometimes has a habit of seemingly forcing characters off the show suddenly and without much logic. See, e.g., Sara and Lauren -- both of whom I consider to be regrettable departures. (And yet, somehow, Spyros survives).
  • On that note: if Dollar Bill and Mafee "teaming up" and leaving Axe Capital means next season will involve the exciting side adventures of Bill and Mafee (and hopefully Bonnie too), I'm all for it. If it means they're being written off the show, I'm absolutely furious. Mafee is my favorite! I just want him to be happy.
  • I know we checked in on Axe's kids at boarding school earlier in the season (when Axe got so caught up in his own head about "winning" that he unknowingly but brutally snuffed out the faint speck of conscience in his own son), but man are they ever an after thought. At least Chuck's daughter got a nice moment in the omelette scene. I actually think this show is worse without Lara.
  • As a law professor, I hated -- hated -- everything involving the law teaching and law students at Yale. Let us speak of it no more.
  • I'm torn on the Axe/Wendy romance, and it's the opposite of what typically happens in shows like this. Normally, a show with this much interaction between a male and female lead eventually tries to force a will they/won't they, even if there isn't real chemistry between them. Here, even though I objectively prefer and find genuinely interesting their deep platonic/professional bond, there's undeniable chemistry between Axe and Wendy -- the show wasn't just pulling it out of air.
  • Still waiting on a truly pure, juicy, Sacker storyline.
All in all, Billions remains one of my favorite shows on television right now, and I can't wait for the quick turnaround to season six (January 2022)!