Of the sixty-plus conlawprof emails I've just gone through Eric Segall's followed by Malla Pollack interest me the most because we each have to decide what the Michigan and Texas cases most stand for. While it may be so that you need to write "as if the opinions stand on coherent doctrine," I'm not so sure you have to read them that way. Nor am I sure you need to write that way either, if you're not quite sure one is less than full coherent.
Here's a take on the affirmative action case: The Court, being well-attuned to the body politic, and aware it cannot get too far either in front or behind the prevailing mood, sensed the divisive nature of the problem of dealing with race. The Court was damned if it did uphold AA and damned if it didn't. So it cut the baby in half, for no longer than 25 years, snaking one right down the middle. Of course it had to bend a rule or two, but they were Court-made, not textual, like equal protection. When is the last time the Court held its nose and declared its doctrine okay, but not really okay, a deviation from equal protection, but only for 25 years and that ought to hold the rascals while we go on to other things. The Court has practically, and expressly, overruled its own decision, effective 25 years hence. When I read the Michigan cases, I was doing fine on the undergraduate 20-point bonus tossout, and I was doing fine on the law school upholding, until I read about how it really worked. That's when thoughts of three-card monte and shell-games started running through my head. 'Diversity' and 'critical mass' began to flash on and off. Then I learned, from Kennedy's dissent, followed by Rehnquist's charts how the game worked. The closer the admissions committee got to the end of the processing period, the more the question of race became outcome determinative, mechanically and inflexibly. It appears we have now two kinds of strict scrutiny, the real kind, practiced by the gimlet eyed conservative dissenters, and the make-believe kind practiced by the majority. Were there good political reasons for the majority doing this? I guess so. Did R.B. Taney have what he thought were good political reasons for his D. Scott decision? I'm informed that he most certainly did. Disclaimer: I'm not suggesting the Michigan case is the next DS decision, only that if and when the Court so (apparently) transparently displays a political calculation when it is supposed to be performing a legal one, it's on thinner ice than it wants to be on. With Rehnquist calling the majority decision a 'sham' and Kennedy explaining why he can't go along with it, and O'C declaring it has to go in 25 years starting now, I'm afraid this one is in trouble from the git. If I were on the UMLS admissions committee, I'd be watching my back when it came to the short strokes at the end when the race cards are being dealt. Interesting that one of the dissenters noted how this process was not very transparent. Anyone ever thought of putting a video camera in the Admissions Committee room when push came to shove, you know, the way we have cameras in courtrooms? Is the UM decision(s) going to be treated in class and among scholars as a shining example of constitutional jurisprudence, or the way the Bowers decision has been? I thought the Texas case WAS a shining example. Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Malla Pollack <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 6/26/2003 5:11:39 PM > Subject: Re: Lawrence vs. Glucksberg > > My answer is pragmatic. I do not hide my scepticism from my students, but I > keep telling them that the "its just politics or judges' own prefernces" > answer is simply too easy. That answser does not streach their legal skills. > The answer is also not helpful. Judges write (and many or perhaps most) > consiously think of case law in terms of doctrine, logic, history, etc. In > writing briefs, whether for paying clients or pro bono amicus documents, you > need to write as if the opinions stand on coherent doctrine. > > Malla Pollack > Visiting, Univ. of Oregon, Law > 541-346-1599 > [EMAIL PROTECTED] > ----- Original Message ----- > From: "Eric Segall" <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Sent: Thursday, June 26, 2003 5:48 PM > Subject: Re: Lawrence vs. Glucksberg > > > > It seems like at least some of us agree that this week's decisions have > everything to do with political choices made by a council of elders and > nothing to do with true doctrinal substance. I, for one, REALLY believe > that. For those of you who agree, I wonder how we should approach these > cases with our students. When I first started teaching I asked a famous > critical legal scholar that question and the person responded that the > scholarly hat wasn't the same as the teaching hat. That didn't satisfy me > then and it doesn't now. But I am nervous about suggesting to my students > that the results are all political choice and zero doctrine (which I > believe). Any suggestions? > > > > Eric Segall > > GSU College of Law > > > > >>> [EMAIL PROTECTED] 06/26/03 20:23 PM >>> > > Isn't it obvious? > > > > The Court is doing what it has long done, acting as Posnerian "wise > elders" > > squarely within the mainstream of American elite opinion, imposing this > > vision on aberrant states. > > > > Scot Powe pretty persuasively explains most Warren Court holdings on this > > basis. Only Powell's unexpected temporary brain lock and lapse from such > > elite opinion made it take this long. > > > > I wouldn't expect much sequelae from this case, any more than from Bush v. > > Gore. > > > > > > Frank Cross > > Herbert D. Kelleher Centennial Professor of Business Law > > CBA 5.202 > > University of Texas at Austin > > Austin, TX 78712 > > > >
