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I completely agree with legislation via judicial branch being a bad idea. However, affirmative action isn't legislation. This is judicial review striking down p

• alsaaro 3y ago
  Judicial review has upheld the constitutionality of affirmative action policies for 40+ years, what changed is the composition of the Supreme Court and its related willingness to legislate from the bench -- abandoning stare decisis and judicial restraint. We saw this with Roe last year.
  • newacct3 3y ago
    What also changed was the timing of the decision, see O'Connor's "25 years" comment
    • alsaaro 3y ago
      Remember the Supreme Court upheld the legality of affirmative action in 2016 in Fisher v. UT-Austin, and two lower courts upheld the legality of affirmative action in this particular decision. What changed is the make-up of the court; otherwise, apparently affirmative action's unconstitutionality was just realized like a revelation from God and every previous court (federal and Supreme) was wrong. Racial rancor, and racism in general -- anti black racism in particular -- has probably increased since 2003; at least in the public sphere - hopefully this ruling is not a part of that milieu.
  • MichaelZuo 3y ago
    Regardless of whatever the political currents are, it's sensible policy to strike down every pseudo law that doesn't have legislative backing of some kind. If they only selectively struck them down in favor of one group or another, then that would be a different matter.
    • engineer_22 3y ago
      The greater corpus of American law is based on case law, meaning it is based on court decisions. It is a common law system. This is in juxtaposition to civil law systems that are based on codified legislation, for example in France or Germany.
      • MichaelZuo 3y ago
        Most case law is based on some kind of legislative output directly or indirectly via other case law. That's well known.
        • engineer_22 3y ago
          Yes I agree with you and in the context of this discussion it's unknown the parent's understanding of law and pseudo-law and I apologize if I came across the wrong way as a poser
  • JustBreath 3y ago
    Agree except for the "willingness to legislate" changing. That's been in place for a LONG time, it dates all the way back to the separation of church and state decision being based on a letter Thomas Jefferson wrote. Hell Roe v. Wade itself is an example.
  • COGlory 3y ago
    Some of the original Supreme Court cases upholding these policies went so far as to say that in the future, these exact things should be revisited because they were trying to bandage over decades of institutional racism. https://gspp.berkeley.edu/research-and-impact/publications/was-justice-oconnor-right-race-and-highly-selective-college-admissions-in-2 https://gspp.berkeley.edu/research-and-impact/publications/w... > In her opinion in Grutter v. Bollinger, Justice Sandra Day O’Connor concluded that affirmative action in college admissions is justifiable, but not in perpetuity: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.” There are lots of criticisms of the SC, but I don't see why everything they rule should be absolute ground truth forever. They can (and do) revisit cases for good reason.
    • lost_tourist 3y ago
      I think it's mostly about the current MAGA heavy SCOTUS though that got there mostly by duplicity and hamstringing Senate procedures and pure luck. The judges weren't selected for talent, they were selected for an agenda.
      • Clubber 3y ago
        >I think it's mostly about the current MAGA heavy SCOTUS That's modern liberal opinion news talking. It's about law. AA is a direct contradiction to the 14th amendment and it dilutes it. I'm sure just about everyone, including previously and currently oppressed minorities would prefer the protections of 14th amendment over the protections of AA.
        • lost_tourist 3y ago
          No, not true at all and I don't agree. Otherwise no government program could take race into consideration, but they do. Are you saying any kind of programs that are "race based" should now be null and void? Because you can't nit pick situations given your logic. Also downvotes don't hurt me and I don't care, I will continue to speak my peace.
  • localplume 3y ago
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  • paulvnickerson 3y ago
    Striking down Roa v Wade was an example of undoing such “legislating from the branch.” The original Roe v Wade created in effect a new federal law, and last year’s decision struck that down.
  • AYBABTME 3y ago
    I'm on the more liberal side of the spectrum, yet it's unfair to say that _this_ SCOTUS has been legislating from the bench. The prior Democratic balance of SCOTUS did exactly the same and stretched very widely the definition of things to fit modern progressive ideals. In my opinion, politicians should have made Roe v. Wade into law instead of relying on SCOTUS to legis-interpret in their favor indefinitely. I don't like many recent rulings from SCOTUS, but intellectual honesty forces me to admit that when the pendulum was on the other side, the same thing happened with different allegiances.
    • alsaaro 3y ago
      There was hasn't been a "prior Democratic balance of SCOTUS" the SCOTUS has been firmly conservative since Rehnquist (1986) and probably before that. What is notable about this Robert's Court, is that they have overturned rulings affirmed by other conservative courts and even their own recent rulings! Almost as if the Robert's court concluded there is no point in being powerful if you can't rule, even though ruling is beyond the scope of all courts. As for Roe V. Wade being codified, this was a moot point at the time because you had a Constitutional right to an abortion -- your right to an abortion was codified in the Constitution, a law would have been redundant.
      • GloomyBoots 3y ago
        No it wasn’t. You had a constitutional right to privacy, not to abortion. It was obviously tenuous reasoning at the time, and its shaky footing hasn’t exactly been a secret ever since. Roe should have been codified into law if we really wanted to keep it around long term.
      • AYBABTME 3y ago
        Alright, prior SCOTUS had a more democratic balance, and at a minimum ruled more often than now in fairly tenuous ways in favor of progressive ideals. The end result was stuff I liked more than what they rule today, but them having voted in my camp doesn't mean I believe it was the right thing. I think when the status quo requires on someone's stretched interpretation of a series of things, and this status quo is very important to people, it's on lawmakers to make the rules unambiguous.
  • legitster 3y ago
    Well, in both cases, the decisions at the time implied that they were temporary. A lot of the logic of Roe v Wade was based on viability outside of a womb based on medical science of the time. Right in the decision of affirmative action there is admission that it will need to be revisited.
    • mcpackieh 3y ago
      Roe v Wade's trimester system, like virtually all abortion cutoffs, was essentially arbitrary. Calibrated to fit what their gut felt was right. For evidence of this, look at the abortion cutoffs in Europe, nearly every European country has a different cutoff from the others. In Germany it's 12 weeks and in the UK it's 24. It's all over the place. If these cutoffs were based on science there shouldn't be this much spread.
      • zajio1am 3y ago
        > look at the abortion cutoffs in Europe, nearly every European country has a different cutoff from the others. Not really, 12 weeks are pretty common, and most european countries fit in 10-14 weeks, with just few exceptions like UK and Netherlands.
  • deleted 3y ago
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  • stainablesteel 3y ago
    there are way more things in the world that have changed besides what justices make up the supreme court these policies of racial discrimination aren't helping anyone. they don't help the people who didn't deserve the spots in the first place, and they don't help the people that are being robbed of the spots they deserve.
• eli 3y ago
  Yes, exactly: it's a policy decision. Congress could pass a law altering what affirmative action is allowed if they wanted a different policy.
  • gnicholas 3y ago
    Often this is true, but this case was decided based on constitutional interpretation of the 14th Amendment. Congress cannot override this with a law. It would require an amendment to the Constitution, which is more involved. Considering that not even CA could pass a law to allow affirmative action in higher education, it would be impossible for such an amendment to be passed and ratified by the states.
    • dragonwriter 3y ago
      > Often this is true, but this case was decided based on constitutional interpretation of the 14th Amendment. The main opinion was actually following a line of cases using 14th Amendment jurisprudence to guide the interpetation of similar text in Title VI of the the Civil Rights Act of 1964, so, yes, Congress can override it by changing the text of the statute, which is in principal what is actually being applied. The portion of the 14th Amendment whose interprtation was imported doesn’t bind either private actors or the federal government, so isn’t directly applicable on its own.
      • gnicholas 3y ago
        Hm, that's not my reading of the case, in particular this sentence from page 2 (the Syllabus): > Held: Harvard’s and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. The concurrence by Gorsuch also makes clear that the majority opinion was based on the Constitution, not Title VI. > Today, the Court holds that the Equal Protection Clause of the Fourteenth Amendment does not tolerate this practice. I write to emphasize that Title VI of the Civil Rights Act of 1964 does not either. What are you seeing that indicates that the majority opinion was based on Title VI?
    • eli 3y ago
• DonsDiscountGas 3y ago
  Racial discrimination has been explicitly illegal, and affirmative action - as currently practiced - is racial discrimination. You're right that it's not legislation, it's straight up illegal. The courts have been tying themselves in knots around this but somebody finally just read the law. If Congress wants to make some kinds of racial discrimination legal, they need to actually pass a law saying so. The original usage of the phrase is reasonable enough[0], but that's not what this lawsuit was about. [0] > On March 6, 1961, shortly after taking office, President John F. Kennedy signed Executive Order 10925, which required all federal contractors to take “affirmative action”—the first use of the phrase in this context—to ensure all job applicants and employees were treated equally, regardless of race, creed, color or national origin. https://www.history.com/topics/us-government-and-politics/affirmative-action#executive-order-10925 https://www.history.com/topics/us-government-and-politics/af...