Thursday, December 10, 2015


Justice Antonin Scalia has embarrassed himself, SCOTUS and the legal profession as a whole.  He owes the public, not only an apology, but an explanation (which hopefully in his opinion he will write) as to how a member of the Court can publicly announce such a racist view as he did yesterday.

Scalia said:  "There are those who contend that it does not benefit African-Americans to them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less - - slower track school where they do well.  One of the briefs pointed out that most of the black scientists in this country don't come from schools like the University of Texas."

Scalia was referencing with apparent approval a brief filed by Richard Sander, who has written about the "mismatched theory".  "Students with an interest in science who are admitted to a very competitive school via a large preference attend to drop of the sciences at a much higher rate than do otherwise similar students who attend somewhat less competitive programs, the brief said.  Competition appears to be major factor in the lo rate at which African-American students become scientists, despite high levels of interest in the sciences."

Doesn't this make it more understandable that African-Americans can not trust or believe in the judicial system?  It is apparent that Scalia has affirmed the belief of  African-Americans in the United States that the system does not operate equally for them, in that they are not viewed the same as white Americans.  What could be worse for a minority or ethnic group than to have member of the highest court in the land marginalize that group's intelligence, abilities and potential.

Protesters, focus your attention on someone like this.  Demand Scalia resign.  You have the power to destroy his ability to be an effective voice for the court, or even the dissent, despite the tacit approval of Justice Clarence (the silent man) Thomas.

BTW - I have not seen any comment or disapproval coming from Ted Cruz on this, even though such a comment is despicable and "lawless".


old guy said...

Not that I ever want to be an apologist for Scalia, but he did not say that these were his beliefs. He started the dialogue with "There are those who believe..."

He may, indeed, harbor those same thoughts, but he did not say so. Therefore, your entire premise is a fallacy. If you have proof that he is bigoted, please let us know.

If not, please avoid using your own interpretation as proof of someone else's true beliefs. Thanks Perfessor.

Anonymous said...

Let me see if I understand the theory correctly, given that it is just a theory: a student of any race will prosper most in an academic setting which best suits his abilities. For example, an undergrad with a 3.0 GPA and a 155 LSAT would likely do best at a law school where those numbers are somewhere near the median. An undergrad with a 3.9 and a 177 would prosper best at a school where those numbers are nearer the median. To take the first student, call him student A, and place him in the more exclusive law school, would to be doing student A a disservice, as he will likely be outpaced by his higher-achieving, higher IQ peers. Professors will "pitch" the lessons at a "median student" level above Student A's abilities, he will be graded on a curve which makes him consistently near the bottom, and he will likely sense himself to be one of the poorer students in his cohort. That's the theory, at least.

It does A no service, goes the theory, to "mismatch" him among students with higher academic achievements.

If I understand that correctly, it seems to make common sense. I would imagine that data bear out its conclusions, though I do not have such data. Do you, Professor? Do data bear out the claims that students with lower GPAs (in HS or UG) and lower standardized tests generally perform more poorly in schools with higher median numbers? Do they drop out at greater rates, report greater difficulty, get lower grades, suffer more depression, etc?

If you, Professor, care about the success of African American students as I do (and you might be surprised at my ethnicity), have you looked into the answers to these questions? Could it be possible that taking a black student who would excel at UF and enrolling him at Yale, and taking a black student who would excel at FIU and enrolling him at UF, etc.. might be doing these students a disservice?

Maybe we could honestly address these legit questions to get real, data-based answers before getting hysterical calling Justices names and demanding resignations.

But, I already know, that is not your style. I just hope youre not an actual "Professor" if you care so little about the real outcomes of real students.

Anonymous said...

TRUMP IN THE WHITE HOUSE, NINO IN THE COURTHOUSE, RAHM IN THE CITY...DAM POLITICAL CORRECTNESS OBVIOUSLY WE HAVE HAD ENOUGH...is this ISIS intention to destroy civil society???we have been down this road before and America will survive and we shall be better for it...but it sure is quite difficult to witness..first they came for them...then them and now us...u are next...and I am quite surprised how many lawyers support trump...at dolphin game sunday, we won, and i was told by two lawyers they hate Hillary so much they would vote for TRUMP...Nixon spoke of the silent minority...??? Aretha sung who's zooming whom??

Rumpole said...

I think the whole world is falling apart. It's madness. Madness.

And the first commentator is correct. Scalia chooses his words carefully. He did say "there are those who believe..." he is nothing if not super duper smart and wouldn't get caught mistakenly admitting racist views. I think he was stirring the pot. So to speak.

Anonymous said...

A few points. Not only did he reference "those who believe...," but he was referring to several specific amicus briefs filed in the case. Moreover, he never suggested that minority applicants that can get into top schools without being the beneficiaries of "affirmative action" go to lesser schools. That in and of itself would violate the theory of mismatch which he talks about. One last point, instead of addressing the "offensiveness" of his comments, maybe we should look at the veracity and the amicus briefs the court is relying on. Here is a Dartmouth study on mismatch: http://www.dartblog.com/data/2013/02/010657.php
Also, justices always play devil's advocate. They don't necessarily ask questions they agree with, and to conflate the questioning with Scalia's personal opinions isn't right.

Anonymous said...

Sounds like FAMU could get a law school again. Likely the opinion will cite Plessy vs. Ferguson

Anonymous said...


Destry changed sentence after the public outrage but the facts show this was much more then a simple DWLS. Should have kept the 60 years

The Professor said...

Scalia’s characterization of gay marriage has sometimes been put in terms that have offended many. In his dissent in Obergfel, that legalized same-sex marriage across the country, he questioned the court’s majority opinion that intimacy and spirituality were freedoms:

“Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie,”

Scalia recently spoke to a group of law students at Georgetown University and likened the court’s decision to protect gay rights to protecting child molesters:

“What minorities deserve protection?” What? It’s up to me to identify deserving minorities? (Comment: YES IT IS!!!!) What about pederasts? What about child abusers? This is a deserving minority,” he joked. “Nobody loves them.”

In Lawrence v. Texas, which overturned state anti-sodomy laws he compared sodomy and oral sex to bestiality and adult incest:

“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ … the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity,”

He defended some of the toughest forms of physical interrogation in a 2008 interview:

“Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?”

How much longer do we have to endure this guy bringing his theocratic attitudes and bigotry to constitutional decisions. A reading of his decisions tells you that it has only gotten worse over the years.

This is the same guy who lives by the belief that, if it is not literally written in the Constitution, then it does not exist. Yet he writes opinions like Shatzer limiting your right to counsel to 14 days (Comment: Where in the Constitution do you see the words “14 days”?) before authorities can re-initiate contact with you, even though you invoked your right to counsel under Edwards. In Dickerson he advocates the abolition of Miranda.

So yes, I believe Scalia is a bigot in many forms.

Anonymous said...

why would "there are those who believe" matter in an appellate oral argument. It aint in the record. Maybe the federal JQC can investigate. Ho Ho Ho Ho.

JAI said...

I expect this sort of thing from Slate or Salon.

Anonymous said...

Ok you believe he's a bigot, got it. But please respond to the substance of the argument and help us know what's "racist" about it.

Anonymous said...

4:12 Scalia is a racist and so are you. What is the relevance to the case that black people should go to less rigorous schools because they are not smart enough. Sat scores are so amenable to manipulation by the monied that a lower score by an untutored student is probably more indicative of future success than most higher scores. I personally know one student who raised their sats from FIU to the ivy league with expensive tutoring over a 2 year period. Racism and political correctness are 2 different things. What next? Are you going to propose eugenics as a solution to the mongrelization of the intelligent white race by lesser races.

Anonymous said...

Diversity is absolutely crucial to a college. Every college needs a student body that reflects America. And every college sports team needs a roster that does the same. So let's start with the Duke basketball team. No more one and done instant millionaires who read at a 3rd grade level. Let's put more Jewish engineering majors in the backcourt who love playing basketball. Yeah, they would get outplayed and be 1000 times in over their heads but, hey, think of the benefits of diversity? Sure, they would be more suited for the intramural league or the Saturday afternoon 3 on 3 tournament but we need to genuflect the Gods of diversity!

Anonymous said...

I get it. Scalia and 4:12 are trying to help black people by making sure they go to schools where people of lesser intelligence can succeed. I must apologize, I Thought they were advancing bigotry.

Anonymous said...

Ah, taking quotes, or in this case partial quotes, out of context to further your agenda. You lack credibility ( even though your the best anonymous attorney around)

Anonymous said...

We need to stop that dumb culture of getting offended over everything and grow up.

Anonymous said...

I'm a UF student that excelled and I have to tell you a Yale student at the bottom of his or her class would have many more opportunities.

Anonymous said...

1:15 I'll bet you a hundred bucks you're white... calling ME racist against blacks. I love it.

Kissimmee Kid said...


In Florida! I doubt that. You really think the a Florida company is gonna hire a lock company grad over an Alligator? Were you in the the Northeast, an Ivy League degree opens doors, here, FSU and UF are far more impressive. It might be that you want a slave position in Biglaw's factory, but, if you want work as a lawyer,...