Month: June 2013

Amy Howe explains today’s 7-1 SCOTUS ruling:

Today a broad majority of the Court reinforced that affirmative action must be strictly reviewed, but it did not outlaw those programs.  In an opinion that required only thirteen pages, the Court explained that a university’s use of race must meet a test known as “strict scrutiny.”  Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored.”  The Court in Fisher took pains to make clear exactly what this means:  courts can no longer simply rubber-stamp a university’s determination that it needs to use affirmative action to have a diverse student body.  Instead, courts themselves will need to confirm that the use of race is “necessary” – that is, that there is no other realistic alternative that does not use race that would also create a diverse student body.  Because the lower court had not done so, the Court sent the case back for it to determine whether the university could make this showing.

Lyle Denniston believes that the ruling has created “a strong new incentive for opponents of ‘affirmative action’ in college admissions to test virtually every such program; indeed, in some ways, the tone of the opinion would seem to invite such further testing.” Noah Feldman compares Justice Kennedy, who wrote the majority opinion, to Sandra Day O’Connor:

Justice Sandra Day O’Connor started [the countdown clock on race-based college admissions] in 2003, when she wrote for the court that she expected such policies might be necessary (and therefore constitutional) until 2028. … The upshot of the Fisher holding is that if Kennedy does want to strike down affirmative action, he wants to do it gradually, stepwise, over several more years of litigation. That is exactly what O’Connor wanted with her highly unusual 25-year clock. Kennedy tends to prefer principles to such explicit pragmatic compromise. But here, with the chance to make headlines by striking down affirmative action, he acted like O’Connor.

That gives us a clue for what Kennedy might do in the two same-sex marriage cases that still loom.

If he is foisting gradualism on conservatives who want to end affirmative action, he may be preparing to foist gradualism on liberals who want full marriage rights for gay people right now. That would require Kennedy to eschew some of his grandly principled holdings in earlier fundamental rights cases — but it would further consolidate his position as the most powerful justice since, well, Sandra Day O’Connor.

Jeffrey Rosen is in the same ballpark:

The decision is a tribute to the moderation of Justice Kennedy and Chief Justice Roberts, who defied expectations and insisted on a narrow rather than a broad opinion. Unlike Justice Clarence Thomas, who would have overturned the Grutter case, and cases stretching back to the Bakke decision in 1978, which hold that educational diversity is a compelling interest for universities to pursue, Kennedy and the six conservative and liberal justices who joined him continued to accept Grutter as good law. That is a hugely significant act of judicial restraint, especially since most commentators expected the Court to go the other way.

David Corn writes that this “was a bad day for Justice Clarence Thomas”:

As he notes in a concurring opinion (that reads like a dissent), he wanted the court to “hold that a State’s use of race in higher education admissions is categorically prohibited by the Equal Protection Clause.” Thomas’ decision was longer than that of the majority opinion written by Justice Anthony Kennedy. He compared the arguments in favor of affirmative action to those used to support segregation in years bygone, calling them “virtually identical” to the contentions the court rejected to undo segregation. He declared, “The use of race has little to do with the alleged educational benefits of diversity.” And he went as far as you would expect, noting that “Slaveholders argued that slavery was a ‘positive good’ that civilized blacks and elevated them in every dimension of life.”

Yes, Thomas compared the justification of affirmative action to the justification for slavery. And he asserted that affirmative action harms white and Asian American students denied admission but actually causes more harm to those admitted under such programs: “Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates.”

And Eric Posner examines Ginsberg’s dissent:

The lawyers for Abigail Fisher, the white applicant to UT Austin who brought today’s case, did not challenge an important element of the University of Texas’ admissions system, which is that the university will accept the top 10 percent of the class of each high school in Texas. This rule sounds race-neutral, but as Ginsburg notes in her dissent, it was just a disguised form of affirmative action, based on the background fact that Texas schools are highly segregated. The top 10 percent of an all-black school in a poor school district will be more poorly qualified for higher education than the 10–20 percent tier of an all-white school in a wealthy district, yet it’s the first group that automatically gets to go the University of Texas. This is a crude way to engage in affirmative action, and if the court bans explicit racial classifications while permitting this kind of disguise, which universities will rush to embrace, then it’s hard to see how the law will advance the meritocratic ideal embraced by opponents of affirmative action.

Ben Smith asks journalists to stop debating Snowden’s character. But, with news that the leaker is now in Moscow and apparently seeking asylum in Ecuador, Moynihan pushes back, arguing that Snowden’s shelter under authoritarian regimes makes his character fair game:

[Y]es, it is necessary to point out that, from Moscow, Snowden looks to be relocating, after a possible stop in Havana, to Ecuador, a country classified by Freedom House as “partially free,” with an “unfree” press. As we debate protecting journalists like Glenn Greenwald from the scurrilous attacks of both his fellow journalists, and politicians, it’s also worth noting that the Committee to Protect Journalists has expressed its “dismay” over a repressive new media law, inspired by Ecuadorian President Rafael Correa’s late mentor Hugo Chávez, that allows the government to “impose arbitrary sanctions and censor the press.”

As we bang on about the importance of transparency, we should remember that the Ecuadorian National Assembly, in which 100 of 137 seats are held by Correa’s ruling party, approved the controversial measure, according to the Knight Center for Journalism in the Americas, “without debating any of its provisions—not even the ones that were added in the last moment.” Or maybe revisit Amnesty’s 2012 complaint that Correa was overseeing a “pattern of criminalization of community leaders who have participated in peaceful protests and then face unfounded charges, arbitrary arrests, and strict bail conditions simply for campaigning against laws and policies on the use of natural resources.”

Max Fisher analyzes what Putin or Ecuadorian president Rafael Correa would stand to gain by granting asylum to Snowden:

By sheltering Assange and possibly Snowden, infuriating the United States in the process, Correa bolsters his image as a national champion standing up to the Americans as well as his case for vigilance against the imperialist threat, including in the independent media he has painted as pro-Washington. Snowden, wittingly or not, could risk granting Correa’s crackdowns some political cover by accepting asylum there.

It’s difficult to imagine that Snowden or Assange earnestly support Correa’s treatment of journalists or his ideology, much less the far worse abuses of Vladimir Putin’s Russia. And it’s not hard to see why someone might prefer asylum with a troubled Latin American democracy to risking life in a jail cell. But it’s difficult to escape the irony of these two high-profile activists, who got themselves wanted by the United States for leaks they say expose U.S. abuses, now allying themselves with governments infamous for abuses that are by any reasonable metric far more egregious.

Move over, Lydia Callis – meet Holly Maniatty, whose signing of the Wu-Tang Clan’s Bonnaroo show is burning up the Internets:

[Besides] memorizing their lyrics and watching past shows … [h]er prep work also includes researching dialectal signs to ensure accuracy and authenticity. An Atlanta rapper will use different slang than a Queens one, and ASL speakers from different regions also use different signs, so knowing how a word like guns and brother are signed in a given region is crucial for authenticity. … Of course, hip-hop is a highly improvisational art, and no amount of careful research can prepare an ASL interpreter for what might happen at a live show. “There are lots of times people freestyle; you have to go with the moment,” she said. “For some reason my brain is dialed into the hip-hop cadence and is able to process language really quickly.”

The rappers she works for seem to agree. At one point during Wu-Tang’s performance of “Bring Da Ruckus,” Method Man came over to Maniatty, mid-signing, and gave her a hug and a fist bump. He had been looking at her every time he said “motherfuckin” during the song and wanted to see if she signed it and how. Maniatty told me she thought to herself, “Of course I’m gonna say it, you’re saying it. Your words, not mine.”

On that note, Eric Sundermann interviews the woman who is “almost more fun to watch than Wu-Tang themselves”:

Is it weird to do interpretation for stuff that might make you uncomfortable? 

Yeah. At one point I was interpreting for Tenacious D, Jack Black’s band, and he was singing that song “Fuck Me Gently.” I was like, I cannot believe I’m signing this in front of 10,000 people.  But you know, it’s something he wanted to sing about. It’s Jack Black and you just do it.

There’s been some discussion about me signing the ‘N’ word, but that’s the word [Wu-Tang] uses and they have the rights to use it or not to use it. I wanted to make sure that the patrons can make their own political opinion, either being “okay, cool,” or be offended by it. To steal that opportunity from them is not the role of an interpreter. You know when you go to a concert and you’re like, who are these performers? And then you’re like, oh my god, they’re awesome! That’s the kind of experience you want [deaf people] to have.

For more Maniatty, watch her dance and sign with Bruce Springsteen here.