00:00 [Archival]: Well, I get to say that this is case number 11345, Fisher against the University of Texas at Austin.

[music]

00:07 Leon Neyfakh: Hey, everyone. It's Leon Neyfakh, co-creator of Fiasco and Slow Burn. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Fisher v. University of Texas, a supreme court decision that encapsulates the modern debate on affirmative action.

00:23 [Archival]: Abigail Fisher was rejected for admission, even though some students with lower test scores and grades got in ahead of her.

00:30 Leon Neyfakh: Fisher helped transform the equal protection clause, from a tool that shielded the rights of freed slaves into a weapon used to undermine civil rights.

00:39 Speaker 4: I hope the court rules that a student's race and ethnicity should not be considered when applying to the university.

00:44 Speaker 5: She's lost at three levels of the justice system, but it appears likely the Supremes will take her side and cripple affirmative action.

00:50 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

00:58 Peter: Welcome to 5-4 podcast, where we dissect and analyze the terrible Supreme Court decisions whose collective weight have slowly crushed the American soul like stones laid atop an accused which [laughter] I am Peter, Twitter is The Law Boy. I am here with Michael.

01:17 Michael: Hey, Peter.

01:18 Peter: And from Austin, Texas, Rhiannon.

01:21 Rhiannon: Hi.

01:22 Peter: And together, we are America's only sexually-active lawyers [laughter] I think that's right. No, I think that's right. And we are covering Fisher v. Texas, affirmative action case from 2013, and then also, a little bit later, in 2016, that we thought was important to cover primarily because it highlights how Conservatives on the court have turned the Equal Protection Clause, which was meant to protect freed slaves, essentially, into a bludgeon against legislative attempts to promote diversity and correct for historical discrimination. And also because it's sort of the story of a very, very mediocre White girl who decided to bring her failure to get into the University of Texas to court. And this is the sort of mediocrity that you don't see that often, and I wanna dive in. Rhi, tell us a little bit about Abigail Fisher.

02:29 Rhiannon: Enter, yes, Abigail Fisher into our lives. In 2013, she crashes on the scene and she is... You know how, in Scarface, there's a scene where...

02:43 Peter: Already with you.

02:44 Rhiannon: Michelle Pfeiffer's character, she's like, "You know, Tony, you're just like the rest of them." And she calls him a racial epithet. And he's like, "Who are you calling a... " Whatever, "You White piece of bread." Abigail Fisher is a White piece of bread. Okay? [laughter] So, what's going on in Abigail Fisher's life in 2013 is that she's applying in the University of Texas, like Peter said.

03:09 Peter: Well, it's not 2013, right? It's before this. When did she apply?

03:12 Rhiannon: Well, yeah. Okay. Yes, thank you. She's applied before 2013.

03:17 Peter: Just making sure we're all on the same page.

03:21 Rhiannon: She's applied before 2013. And in Texas, there's a law that they passed back in the 90s that required the University of Texas to admit all high school seniors who ranked in the top 10% of their high school classes. Now, when that law goes into effect, the University of Texas looks at, then, the resulting racial, ethnic and cultural background of the undergraduate population at the school, and compare it to the rest of the state. Big surprise, it turns out everybody who's admitted, the vast majority of people are White. So, the University of Texas looks at its policies, and they're like, "What can we do? We need to be admitting a more diverse student population, something that looks a little bit more reflective of the state population, as a whole." And so, they decide to modify their admissions policy so that, for the rest of in-state admission allotments, so we're talking about 8% of in-state admitted students, the university will consider race as one of the factors in admission.

04:27 Michael: In addition to things like socioeconomic status and...

04:31 Rhiannon: Right.

04:31 Peter: And all the usuals, grades, and all that stuff.

04:33 Michael: Activities and...

04:34 Peter: Yeah.

04:35 Rhiannon: Yeah, or like if your parents went to the school, or if your parents are donors to the school, those things might be considered too.

04:40 Michael: No way.

[laughter]

04:44 Rhiannon: So, Abigail Fisher gets denied admission to UT under this system. I don't know how important this is, but she had a 3.59 GPA, she had an 1180 SAT score. She's alright. Alright? She's not a baby genius...

05:00 Peter: Yeah, that's like... It's middling, but it's also... It's way below... UT is a strong school, and it's way below... I think it's well below their 25th percentile in both categories.

05:11 Michael: Right.

05:11 Peter: Is that right?

05:11 Michael: Yeah, they had 30,000 applicants that year, and 10,000 of the 12,000 spots went to the top 10% people, so you're talking 20,000 applicants for 2000 spots. It's gonna be very competitive. That's Ivy League-level selectivity.

05:28 Peter: Right. And so, also important to note though, the day she gets rejected, she calls a lawyer.

05:35 Michael: Yeah.

05:36 Peter: She calls up her dad's friend, who just so happens to be extremely into the idea of suing for affirmative action and has been looking for a case. She's like, "Hey, weren't you looking to sue about affirmative action? Well, just got rejected and I think it might be because I'm White."

05:53 Michael: You won't believe this, there are Black and Hispanic people in my school who got into UT and I did not.

06:01 Rhiannon: That's exactly right.

06:02 Michael: Yeah.

06:03 Rhiannon: That's exactly right. And there's a point to be made here, I think, that her family is sort of... Has the access and is rich enough to have a legal team on speed dial, but they clearly weren't rich enough to just bribe her into UT...

06:21 Michael: That's right.

06:21 Rhiannon: Like real rich families.

06:22 Peter: You can buy a lawn... I don't know what it takes at UT...

06:24 Michael: Right, I was gonna say a plaque and a bench.

06:28 Peter: But everything at school has some family name on it.

06:30 Michael: And I just wanna further contextualize her scores, because if you've got a lawyer on speed dial, there is no doubt she had SAT prep, and shit like that.

06:39 Peter: Right.

06:40 Rhiannon: Yes.

06:40 Michael: And that makes the 1180, which is okay, but not that impressive, seem...

06:45 Peter: I'll say it, soft. If that's your after deep prep score, I'm not... Look, it might just be your score, but you have to live with that. That's what your life is gonna be like. You're not gonna sue your way to a 1400.

[laughter]

07:04 Michael: You shouldn't be eager to put that shit in court documents that can be recorded...

07:07 Peter: As soon as they were like, "We're gonna put the 1180 in the court docs," I'd be like, "Actually, let's just... I'm just gonna go to LSU... "

07:14 Rhiannon: Right, never mind.

07:16 Peter: Which is where she goes.

07:17 Rhiannon: So, yeah, she calls up the lawyers, and so that means that Edward Bloom is on the scene. Mr. Bloom is the founder of the Project on Fair Representation, which is a... It's a non-profit organization, and they basically do pro bono work, looking for and representing plaintiffs to the Supreme Court so that they can shit on the 14th Amendment.

07:38 Michael: Right.

07:38 Rhiannon: This is also... Their project on fair representation there, the people who also take Shelby, a voting rights case to the Supreme Court, that same term.

07:47 Peter: It really is a White people's rights organization. Obviously, they don't frame it like that, but the Shelby County voting rights case is a completely different area of the law, and it's very weird to be deep on the White person side of both of those as one organization.

08:04 Michael: Yeah, it's almost like they are very concerned with White people's status being supreme in our society.

08:14 Peter: It's the kind of a non-profit you have if your SAT scores are an 1180, and you're like, "How do I stay on top of this?"

08:21 Michael: Right.

[laughter]

08:24 Rhiannon: So, these guys at the Project on Fair Representation, they're making the argument that the consideration of race in admissions policies, that's a violation of the 14th Amendment's equal protection clause. So UT's admission policies that take race into account, that's treating people of different races in a discriminatory way, and as part of this, they say publicly, for months, you can listen to her say this in interviews, that people with lower test scores and lower GPAs than Abby are admitted, and the only difference between those people and Abigail Fisher is that those students are people of color. I think it's really important to highlight that that's just... It's fucking false. It's not right.

09:07 Michael: Yeah.

09:07 Peter: Yeah.

09:08 Rhiannon: They're completely ignoring facts on the ground, which are that there were 47, less than 50, 47 students with lower test scores and grades then Abigail Fisher who were admitted that year to UT, and of those 47, 42 of them are fucking White people.

09:25 Michael: Yeah, that's right.

09:27 Peter: And worth noting... So she's made public statements saying, "I had classmates who were getting in, who didn't have the... Who didn't have grades as strong as I did." It's like, "You had classmates? Some of those 47 people were in your classes and you knew who they were?"

09:41 Michael: Including the five minorities?

09:43 Peter: What happened is she's...

09:44 Rhiannon: And you knew their grades?

09:45 Michael: Right?

09:46 Peter: Right. What happened is she was told her whole life by her, undoubtedly, kinda weird family, you can sort of read between the lines here, that this is like an affront to White people, and it's unfair to you, Abby, and we're gonna take a stand. And so, she gets the rejection. She's like, "You know who I think did this to me? Is maybe that kid, Frank, in my Calc class, a Black kid I know. I think it was him."

10:10 Rhiannon: No, she wasn't in Calc. She didn't make it to Calc.

10:11 Michael: That's an "Ouch."

10:12 Peter: What's before Calc?

10:14 Michael: Pre-Calc.

10:15 Rhiannon: Pre-Calc.

[laughter]

10:19 Michael: She was doing trigonometry, right?

10:21 Rhiannon: Right.

10:22 Peter: Which one is shapes? [laughter] That's where I topped out, by the way, mathematically, the shapes one.

10:29 Michael: I just wanna say, I think, in her inner monologue, she wasn't referring to him as, "That Black kid Frank."

[laughter]

10:35 Michael: I think she may have used stronger language in her head, that's my guess.

10:44 Peter: I don't wanna get too harsh on Abby Fisher just because she's terrible at school, and...

10:48 Michael: I do.

10:50 Peter: So, this has led to some harassment of Abby. We should be honest, right? When this case was ultimately settled, the #StayMadAbby trended, right? Shortly after that, in 2016, someone who wasn't a fan of hers flipped her onto her back in public and she was, sort of like similar to a turtle, unable to right herself for several hours until assistance arrived. I don't wanna endorse that. In 2017, someone kind of quietly snuck a treadmill under her and she just walked in place for nearly a day until someone notified her about what was going on. So, again, I just... I don't wanna encourage that sort of behavior, that's not what we're here for.

11:31 Rhiannon: Definitely not.

11:32 Michael: Yeah.

11:32 Peter: And I wish her the best. I wish her and White people everywhere the best, may you throw off your chains and rise to meet your oppressors.

[laughter]

11:45 Peter: Abby's lawsuit makes its way up, right? And the appellate court basically gives Texas's policy, the consideration of race, a thumbs up, saying, essentially, "Yeah, this seems to be fine." They don't do a thorough analysis, the analysis required by the President, the Supreme Court, and as a result, this our first non-5-4 case, right? This is a 7-1 case, the 2013 case. And that's because it's sort of a formalistically simple question, which is, did the court below consider the question properly? The Supreme Court says, "No, no, no, you didn't analyze the policy correctly." And they sent it back down to apply the proper framework. So the Equal Protection Clause says that no state shall deny to any person within its jurisdiction the equal protection of the laws. And if a law is challenged for being discriminatory against a group of people, the court will default to evaluating it under a test that's called rational basis review. And it just means that if the government has any rational basis for the law, then it's okay. And historically, this has been like a very low bar that's easy to get past.

12:54 Michael: Very, very easy. And it makes sense, right? The government makes distinctions between groups of citizens all the time, it's totally normal, like wealthy people pay a higher tax rate than working people and poor people, and that's normal. And it's not an Equal Protection violation yet, so... [chuckle] I don't wanna give the Conservatives in the court any ideas.

13:16 Peter: If Neil Gorsuch is listening to this, we're fucked.

13:17 Michael: Yeah, but... So the court gives Congress the benefit of the doubt, that they're acting in good faith, and as long as they can point to a legitimate purpose of the law, and show that it's doing generally what it's supposed to be doing, the court says it's constitutional.

13:32 Peter: So to give some color, give ive an example, Williamson v. Lee optical was a 1955 case where someone challenged an Oklahoma law that required individuals seeking eye glasses to get a prescription for those eye glasses. And the argument was that this discriminated against unlicensed opticians...

[laughter]

13:52 Peter: Okay. It's a different time, and the law was upheld under a rational basis review because there's a legitimate government interest in promoting people seeing stuff, and the law was rationally related to that interest, right? So that's sort of the outer boundaries of it, but it's also worth noting that this very low standard has been applied to discrimination against LGBT people, which is essentially a statement that they are not a particularly discriminated against group, historically, which we'll get into, I think maybe just in...

14:22 Michael: There might be something to cover.

14:24 Peter: For a minute in a second. But, yeah, I think that speaks for itself.

14:28 Michael: Right. The flipside of this though is that the 14th Amendment was passed in the wake of the Civil War, and if it means anything, it means that it protects historically-oppressed groups, and so the courts need something to give force to that.

14:43 Peter: Right. And so what the court does about this is if a law discriminates against historically-oppressed groups, the courts scrutinizes those laws much more intensely, meaning that the government's interest needs to be more compelling and the law needs to be more tailored to achieving that interest. So one step up from rational basis review is what's called intermediate scrutiny, that's just a little higher, and that's the standard used when the court is evaluating discrimination based on gender or, for some reason, legitimacy of birth.

15:13 Michael: Women and bastards.

15:14 Peter: No idea why they think that bastards are historically discriminated against to the same extent as women, but my only real guess is that this is sort of an old case. And back in the day, this was the worst thing you could say to someone, like if someone walked up to you on the street and was like, "Your mother was an impure woman," you had to fight them to the death. That was how it was until 1985.

[laughter]

15:36 Michael: And it's not even that old a case though. It's like '40s, right? Anyway, as a practical matter, intermediate scrutiny, when a court applies that test, it's much more likely to find a law unconstitutional.

15:50 Peter: Right. And then if a law targets some of the categories that the court considers to be the subject of the most historical discrimination, which... It's defined as race, national origin and religion, those are subject to the most intense review, which is called strict scrutiny.

16:07 Michael: And so laws almost never pass this test, it's very rare, and they're almost always found to be unconstitutional when a court applies it. And in this case here, the court says, "Well, look, the school's admission criteria explicitly considers race, so that's discriminating on race, strict scrutiny is the proper test." And so when the court kicks this back down to a lower court, saying, "You gotta apply strict scrutiny," that's why everybody just assumed affirmative action was dead.

16:40 Rhiannon: And is the first articulation of strict scrutiny like this strict scrutiny in Korematsu.

16:45 Peter: Yes.

16:46 Michael: It is. The first time they articulated is in turning Japanese Americans, and that survived strict scrutiny.

16:53 Peter: Yeah, the first time this pops up is when the court was deciding that putting Japanese people in internment camps during World War II was A-okay.

17:00 Michael: Right.

17:01 Peter: Just to give you a sense of where they're coming from with this shit. And I think maybe the most offensive part of the whole framework is that it's based on category. So, differentiation based on a race gets the most scrutiny no matter what the race is, same with religion, which means that if you treat Whites unfavorably, it's treated the exact same way as if you treated Blacks or Hispanics unfavorably, despite the fact that the whole historic discrimination thing gets flipped on its head entirely.

17:27 Michael: Right.

17:27 Peter: That means that the court would scrutinize a claim of discrimination against a White Christian man more intensely than a gay woman, for example, just because one is race and religion and the other sexuality and gender, which they don't think are that important.

17:41 Michael: Right. I'm just imagining the Roberts court sitting down with General Sherman, and being like, "Look, 40 acres and a mule, that's just for Black people. [chuckle] And you know that the Constitution does not discriminate based on race, so we're gonna have to take a real close look at this."

18:00 Peter: And the result of this inability to distinguish between, say, discrimination against White people and Black people, is that the Equal Protection Clause, which popped up after slavery, specifically to protect the rights of freed slaves has become a tool to attack good faith attempts by the government to make race-based determinations to correct past inequities. So states have stopped being expressly racist against non-Whites in the way that they were in the '50s. They pass subtler laws, photo ID, gerrymandering, these things target non-Whites, and they do so on purpose, but they don't do so explicitly, and so they don't get the highest level of scrutiny, in most cases. The only laws that do openly distinguish between races are laws like affirmative action, which are openly and honestly trying to remediate those same historical wrongs. And the result is that, in a lot of ways, the Equal Protection Clause has been kind of flipped and has now been a effective mechanism for beating back liberal left attempts to combat racism.

19:00 Michael: And you see that with the history of affirmative action. This is a program that was born in the same time as desegregation was happening, right? And the idea is precisely to ameliorate inequities in education for Black Americans versus White Americans. This is a major problem, that Black Americans are segregated, they're in separate and worse schools, they're not getting into the same schools as White people or not getting into colleges at all, and the idea is, well, we need to change that, and it's about inequality and inequity, right?

19:36 Peter: Yeah.

19:36 Michael: And that gets completely sort of neutered because the idea that a program is designed to help Black people is so scary, and it's a recognized, compelling government interest that satisfies the Equal Protection Clause, but what the Supreme Court says is like, "Well, college admissions boards aren't really in position to make that judgement call, so they have to find a better different reason for wanting to have Black people in their schools."

20:06 Peter: Right, and that has become the reason that the schools are now leaning on to sort of get around that weird and bad faith reasoning, is diversity on campus, the idea that affirmative action isn't really to correct those past wrongs, diversity is good on campus, people benefit from it, and they have like... I mean, there's plenty of research to show that that's correct. It's no longer about correcting those historic wrongs. I think everyone knows that that's untrue, but that's the reason that they have been sort of reduced to by the Supreme Court over the course of the past 30 years.

20:38 Michael: Right. In 1977, the New York Times is running editorials describing affirmative action, like in the headline, as Reparations American-style, and now it's like this is really for White people, so that they get to talk to Black people and Hispanics and broaden the horizon.

20:54 Peter: Wouldn't you like to... Wouldn't you like your kid to be able to talk to a minority for a little bit before they went off to Goldman? Wouldn't that be a nice little treat for Danny?

[laughter]

21:02 Rhiannon: Yeah, what I think you see over the course of the history of affirmative action in the courts and the way it's litigated is, first of all, you see the court's paternalism, that they're taking over, saying that judges are the ones to better decide what's good at a university, what's good for a public school to be doing in terms of educating the state students? And then the other thing that you see is that, like Michael said, it starts with this really robust, almost like a reparations argument, an idea about ameliorating and remedying past harms against racial minorities, but then what happens is the people with access to legal teams and access to the legal institutions, White people and rich people, mostly Conservatives, are going to litigate it over and over and over again until it's something that we see, and why I think it's important to talk about this case. Even though the affirmative action program at UT is eventually upheld, what the Fisher case shows is how sort of White-washed and neutered once you have new conservative judges, once you have new cultural swings, and Conservatives are like fuck civil rights.

22:16 Peter: Affirmative action is for sure, going down, right? I don't know that it gets raised to the Supreme Court any time super soon, but in the next decade, there's just no way it survives absent a serious shift on the court.

22:27 Michael: Right.

22:27 Peter: So, as we mentioned, this decision, it goes 7-1, and sorry, by the way, about doing the third episode, just deviating from the 5-4 name immediately. This is spiritually 5-4, and the reason is because of the Clarence Thomas concurrence. And in that concurrence, he basically lays out all the reasons he thinks that affirmative action should be banned under the Equal Protection Clause. And your first question might be, "Isn't Clarence Thomas Black?" He is, and I just want you to keep in mind what it must take to get a young Black man born in, what, 1950 to the point he is in this case. It is psychology stuff I don't understand at all, but it's psychology nonetheless. There's so much psychology going on in here, I can't even believe it.

23:16 Rhiannon: Clarence Thomas has seen some shit.

23:19 Michael: Yes.

23:20 Peter: Very, very weird. He starts off his concurrence with the heart of his opinion, which is that the Equal Protection Clause is about the principle that government must treat citizens as individuals, not as members of groups. And again, this is just the soul of the Conservative argument about affirmative action and similar government policies. You look at it entirely in a vacuum, and you say, "This is making determinations based on race," which is bad, and completely dodges the real issue, which is that these policies are reactions to the fact that society itself makes unfair and inequitable determinations based on race that need to be redressed. You're waiting until society has already sorted people based on race, and then saying, "We're now blind to race."

24:02 Michael: Right, and so that's like... You know, I don't wanna get ahead of us, to the Ginsburg dissent, just one point she makes in rebuttal to that, that I think is good, which is that the top 10% program at UT is supposedly race-neutral, but the reason why it actually increased diversity from minuscule to slightly more than minuscule at the school is because the schools in Texas were so segregated that you're taking the top 10% from schools that are almost predominantly Black, or almost predominantly Hispanic, and that sort of, by default, is increasing diversity. And so the idea that these are otherwise neutral policies when society is structured in such a racial way is... It's a joke.

24:50 Peter: Right. That's one thing, and again, we shouldn't get too far into Ginsburg's point, but the sort of reduction of affirmative action to this weird diversity argument has led us to a place where every single person is lying, right? The schools are lying about what their reasoning is, the Conservatives on the court that are knocking the shit down are lying about what their reasoning is, and no one is being honest about what they're trying to do, which is like one side is trying to correct for historical wrongs and the other side is saying, "No, we don't think we need that. I think we're good." So this decision, it goes 7-1 and the court says that the circuit court below did not properly apply the strict scrutiny framework that the Supreme Court has required of race-based admissions policies. And pretty much everyone agrees that they didn't apply it correctly... Or almost everyone agrees. Ginsburg dissents, so it gets knocked down to the lower court for reconsideration.

25:40 Peter: Thomas's concurrence is saying, "Yeah, I agree with the majority. It should have been sent down to the lower court, but here are all the reasons why, when it makes its way back up here, I'm going to try to shoot down affirmative action." Thomas's basic thesis here is the same as every man at a frat party, where a 20-year-old guy is like, "Yeah, I'm color-blind." And you're like, "Hm, don't like that." I'm just... Red flags everywhere.

26:09 Michael: Yeah.

26:10 Peter: Clarence Thomas says that race-based considerations demean us all. I don't feel demeaned.

26:16 Michael: No.

26:16 Peter: And it's exactly the kind of shit that, when Liberals say it, the Conservatives are like, "Oh, this is very feelings-based arguing."

26:22 Michael: Right. If you said that anti-gay laws demean us all, they would fucking excoriate you. They would just kill you. Just paragraph after paragraph of what bullshit that is.

26:32 Peter: Right. All of his arguments are sort of this like gee, shucks, slippery slope argument, like, "Well, you say you wanna give Black kids the chance to get into school, but what if this gets out of control and it's just full-scale segregation again?" It's like, well, I don't think that that's a realistic possibility here, dude. I think that an affirmative action policy that gets African American admissions to 3% lower than their actual percentage of the population in Texas, or whatever the fuck, is not at risk of actually recreating segregation somehow. Like what are you even fucking talking about?

27:06 Michael: Right, and he goes in on Texas University and Ginsburg for echoing arguments of segregationists and slaveholders. And he's like, "Well, slaveholders said that this was good for Black people, and segregationists said that this furthered educational interests." And it's like, are you really not gonna interrogate, at all, what is underneath those arguments?

27:34 Peter: Right. You don't have to pretend that all of those arguments are the same, like slaveholders said it was good, you said it's good. I just can't parse this, what's happening?

27:42 Rhiannon: Right. Right. That's what's so annoying to me too about this continued Conservative argument, is it's, on its face, not strenuous, intellectual, legal reasoning, right? It's just a lie about how race works in society. And everybody knows it, so even like Justice Blackmun, who isn't on the court anymore, but he is saying the same things back in affirmative action cases from decades before, in particular, in one in Bakke, saying, quote, "I suspect that it would be impossible to arrange an affirmative action program in a racially-neutral way and have it successful. To ask that this be so is to demand the impossible." So everybody knows, right? That it's a lie. So after the Fisher 2013 case comes out, universities are concerned about how to ensure diverse student populations, and a little-known publication called the Harvard Educational Review feels compelled to basically publish this statement as...

28:42 Peter: Hold on. Wait, was that sarcastic and I should know what that is? Or is that like a really... I do not know what that is.

28:48 Rhiannon: I mean, not even that I give a fuck what institutions like Harvard have to say about this, but these are the people that, purportedly, I guess, are concerned about teaching kids, or something. And so they say...

29:00 Peter: I do not think that's what Harvard is concerned with.

29:01 Michael: Harvard's like a real estate hedge fund with...

29:04 Peter: Yeah, that's correct. What's their endowment now? It's somewhere between 30 and 40 billion.

29:09 Michael: Yeah.

29:09 Rhiannon: And I think a close second is the University of Texas.

29:12 Michael: That wouldn't surprise me.

29:12 Peter: Look at them go.

29:14 Rhiannon: So, anyways, the Harvard Educational Review in 2013, after Fisher comes down, they're saying, "We wonder what Fisher teaches us about the limits of race neutrality as a guiding framework for addressing racial inequality. We're deeply concerned about an emerging catch-22 that some students of color who, as a by-product of poor funding and strained resources in racially-segregated schools, have not been afforded equal educational opportunity, should be deemed unprepared for elite education by the same structures that systematically unprepared them." So it really can't be overstated how much Thomas's argument and the Conservative argument here is based on an absolute lie that everybody knows about race and diversity.

29:54 Peter: So, to circle back to... Michael, you mentioned that he makes this argument that all this stuff is the same thing that segregationists proposed. This is a quote from him, "The argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950s, but emphatically rejected by this court." And what he's referring to is Brown v. Board of Education. And like, yeah, dude, good argument. Same thing, right?

30:16 Michael: Right.

30:17 Peter: So what's happening is this is where the conflation of all different types of racial differentiation is weaponized by Conservatives, who can just pretend that the efforts by the states in the 1950s to keep Blacks in a functionally-separate society are actually the same as efforts by the states now to do the exact opposite thing. And it's like the epitome of the Conservative brain on race issues, generally, right? Where the only thing that ever matters is discrimination in its most literal and obvious sense. You have, like we mentioned, voter ID gerrymandering, any of the countless right-wing efforts to disenfranchise and disempower minorities that don't technically target people by their race, but A, have the impact of targeting people by their race, and B, if you dig into even a few of the records behind any of those efforts, it's extremely obvious what the motivations are, right? Those all get a shrug from Conservatives because it's not explicit.

31:13 Michael: The one thing I will say that I appreciate about Thomas's concurrence is I actually think pretty highly of Thomas as a writer, he writes very clearly and powerfully on his ideas, which are often, I find, to be totally bat-shit crazy, but he enunciates them in a very clear way. And I was reading this and it felt uncharacteristically like bullshit.

31:32 Peter: Yeah. Yeah. It feels rant-y and weird.

31:35 Michael: Yeah. There was one point towards the end, though, where I felt like the mask came off and he was just like, "Look, fucking White people, they've never done anything for Black people.

[laughter]

31:46 Michael: And I don't trust them to do anything for Black people. And I'm like if that was the concurrence, in its entirety, I would be like, "Yeah, I feel that. I respect that." But there is a bunch of Conservative bullshit heaped on top of it.

31:58 Peter: Right. This is also a quote, "There is no principle distinction between the university's assertion that diversity yields educational benefits, and the segregationist's assertion that segregation yields those same benefits." [chuckle] First of all, this stuff is objectively measurable, right? You can actually figure out if this stuff benefits people, you can measure across all sorts of metrics, right? And also, the segregationist's argument was that if you ended segregation, it would cause Whites to be vindictive towards Blacks, and it's like is that really the same argument? Is that really what we're talking about here? I don't think so. [chuckle]

32:32 Michael: Yeah. Yeah.

32:33 Rhiannon: Yeah.

32:33 Peter: And then he gets to the real juice of it, where it gets really interesting and weird, which is where he starts talking about how minorities themselves are hurt by affirmative action. And this is when you can start to tell that this is a very personal thing to Clarence Thomas.

32:45 Michael: He has a bit of an axe to grind. Yeah.

32:47 Peter: So he says minorities admitted to schools under affirmative action are less prepared than their peers, and will struggle in a harder school, when they would have been fine in a lesser school. And he makes the point that Blacks and Hispanics will feel bad because people will assume that they didn't earn their place, which by the way, that's the actual argument made by segregationists in Brown v. Board, because what it's saying is that White people are going to be upset and vindictive about this, and that we need to cater to them on that point. That's very similar to the segregationist argument. So, first, this is like this very weird paternalistic argument, where it's like, "Look, we need to protect minorities from these hard classes," as if they can't make this decision themselves. They can go to a lesser school if they feel like it, right? It's their choice. And also, I don't think the schools are easier. I don't wanna speak to STEM. I feel like... I'm sure Caltech is harder than, whatever, Georgia Tech. Is Georgia Tech bad?

33:37 Michael: Yeah, but Caltech is cool.

33:37 Peter: But some shitty tech like St. John's Tech, I'm sure that Caltech's harder.

33:42 Michael: Right.

33:42 Peter: But fucking History at Harvard is not drastically harder than History at fucking Hofstra, or whatever. And the idea that we need to protect them from fucking Social Psychology at Yale or something [chuckle], come on, fuck outta here.

33:58 Rhiannon: Right. Right. The idea that we need to protect them from social ostracization, or just feeling bad about themselves, but not protect them from what society does to relegate racial minorities, it's wild to me, how is helping the great grandchild of an enslaved person go to college, how is that a bad thing for our world?

34:22 Peter: And it goes without saying that Conservatives have absolutely zero interest. And it's not at question here, but have zero interest at all in interrogating admissions for donors, legacies, athletes, no interest in using the Equal Protection Clause to protect the poor or any other category of people. The result of that is the gaping contrast between the empty hand-wringing about unfairness about race, and then the complete disregard of it, where similar unfairness benefits all of their friends that they make at fucking awards dinners. I don't know if any... If our listeners are unfamiliar with what Supreme Court justices do in their free time, it's like they obviously don't have real jobs, and people want them to speak at places and show up at their dinners and stuff. So you just give them a fake award, where it's like, "Oh, Clarence Thomas, you just won the Constitution Society's award for judging, so if you can just pop up at this dinner and we're gonna give you $10,000 and a trophy, and you say 10 words." That's their whole life. Every weekday is just one of those things. [chuckle] And they make a bunch of friends there, and all of their friends are like, "Hey, my kid... My kid didn't get into the University of Georgia. He scored a 28 on the SATs. [chuckle] And I just... I think that Blacks did it."

35:51 Michael: Yeah. Yeah, that's right.

35:55 Peter: Affirmative action is a drop in the bucket when it comes to, quote unquote, 'unfair', separate from your grades and shit, admissions. It is a fact that the score on your SATs is a better predictor of your parent's income than of your performance in college. Legacy applicants at Harvard get in at somewhere between a four times and nine times clip relative to non-legacies. Legacy admissions hover at around 90% White. 43% of White students at Harvard are legacies, athletes, or the children of donors and faculty. It's 43%. And Harvard is what percentage Black? Like 5%? And all these fucking White kids are looking at them and being like...

[laughter]

36:42 Michael: "They do not... "

36:44 Peter: "You are not one of us, sir."

36:45 Rhiannon: Right. And it just highlights again how arbitrary the differentiation between the categories that we're concerned about, right? So bringing up that poor people aren't getting into college at the same rates because their parents aren't donors, or legacies, or whatever, that's not gonna concern the Supreme Court and...

37:06 Michael: Oh, you don't think the Constitution protects poor people? [chuckle]

37:10 Rhiannon: No, it definitely doesn't. And you know how I know it doesn't? It's because that case went to the Supreme Court, and the Supreme Court said, "Fuck poor people."

37:18 Michael: My sweet summer child.

37:20 Peter: And we will... We're gonna hit it. But these are government entities, these schools, discriminating based on who is a legacy admit, who is a donor, right? There is no particular reason that the Equal Protection Clause couldn't protect against that. The only real reason is that they're like, "Well, it's fine."

37:37 Rhiannon: Exactly.

37:38 Michael: Right.

37:38 Peter: And the fact that you could easily tie a huge number of social ills to it doesn't mean anything to them. They have no interest in that. And again, it's 'cause these are their fucking friends. It's how fucking half of these people got into college, right? If they ever held that legacy admits to Harvard violates the Equal Protection Clause, their friends would just all stop talking to them.

38:00 Rhiannon: Right. And that's why, when you're bringing a question to the Supreme Court about, particularly, constitutional rights, you're telling yourself a lie if you believe that the Supreme Court Justices are going to go through any sort of objective analysis, right? It's about the justice's individual material realities, and what is subjectively important to them, their families, and the people that they know.

38:23 Michael: Yeah.

38:25 Peter: So Thomas has gone on the record numerous times, outside of court opinions, complaining about affirmative action. He has argued that the, quote, "Stigmatizing effects of affirmative action put him at a huge disadvantage when he was trying to find work as a lawyer. [chuckle] And I wanna put that in perspective by just kind of running through his career.

38:44 Michael: Right, I think that's...

38:47 Peter: Graduated from Yale, Yale Law, in 1974, was an Assistant Attorney General in Missouri until 1976. After that, worked for a few years at Monsanto Chemical, doing...

38:56 Rhiannon: Thank you for your service.

38:58 Peter: Just the kind of work you write home about. And in 1979, he goes back to his old boss, from when he was an Assistant Attorney General, who has now become a senator, doing legislative work. And then, in 1981 and in '82, he was Reagan's Assistant Secretary of Education for the Office of Civil Rights in the Department of Education. And from '82 until 1990, he was the head of the Equal Employment Opportunity Commission, which means that, within eight years of graduating from law school at the age of 34, he was the head of one of the most prominent federal agencies in the country. To put that in perspective, at the age of 34, I am arguably one of the top 25 lawyers on Twitter.

[laughter]

39:44 Michael: Could you imagine where he would have been if he didn't have this big... Affirmative action?

39:49 Peter: So, hold on, hold on. After that, he's nominated to the DC Court of Appeals, where he stays for about a year and a half, and then he is nominated to the Supreme Court at the age of 43, the youngest in the modern era, the youngest since 1939, and I think before that, sometime in the 1800s. And I guess, yeah, my question is, what does he think he would have done? He was at the top of the legal profession within 18 years of graduating from law school. So, what he's actually referring to, by the way, when he says he was at a huge disadvantage, is he tried to apply to a bunch of law firms, and they said no, despite the fact that he had great grades at Yale. And he said, "It's because they believed that I was the beneficiary of affirmative action." Did anyone say that to him? Not that I've ever heard.

40:35 Peter: I think it says a lot about the Conservative mindset here, that he has trouble getting jobs at law firms in the 1970s and assumes that the reason is affirmative action rather than the fact that he's fucking Black. He has great grades at Yale, which affirmative action cannot produce on its own, which means that those people, those attorneys evaluating him, they know he can compete with these Yale kids. And they still turn him down, and he's like, "This is affirmative action, I think." And that's why he thinks that his unbelievably unprecedented rise to the Supreme Court was unfair to him.

41:10 Michael: Never before or since has somebody...

41:12 Peter: Never will be again. No one... It would be shocking if someone... I wouldn't put it totally out of the question, but someone younger than 43 being nominated to the Supreme Court in this era, it just seems borderline impossible.

41:22 Rhiannon: That's wild.

41:23 Peter: It's crazy that it happened then. Also, he dodged sexual harassment allegations that were unbelievably credible.

41:31 Michael: Yes. Yes.

41:31 Peter: Anita Hill accused him of sexual harassment while he was at the EEOC, including the allegation that he placed a pubic hair on a Coke can and then gave it to her, which has to be true, right? You can't make that up. That's not something you can make up. If that's made up, kudos to her. But if...

41:53 Rhiannon: And what she went through, right?

41:56 Peter: Just something that continued for years, Clarence Thomas's wife, Ginni Thomas, who is just like a standard bare Conservative moron, like a Donald Trump Junior-level intellect, in 2011, called Anita Hill and said, "I forgive you for your accusations against Clarence Thomas."

42:14 Rhiannon: I wish a bitch would. I absolutely wish a bitch would. And again, great grades at Yale or not, just want to emphasize these guys are dumb. And so, while we might want to keep grasping at straws...

42:29 Peter: There's all kinds of ways to be dumb.

42:29 Rhiannon: Right. We might wanna be grasping at straws, to be like, "What is the intellectual backing and foundation for why Clarence Thomas is the way he is?" Actually, the reality is like what Clarence Thomas is known for is sitting on the bench and not saying a fucking word because he doesn't really have...

42:48 Peter: Which is dope, though. That's cool. Clarence Thomas went for like... What was the length of time?

42:51 Rhiannon: Years.

42:52 Michael: Six years.

42:52 Peter: Six years without saying anything during oral argument, and oh, boss shit, dude. If you're at the top of your profession, you don't have a boss or anything, and one day he's just like, "I don't even have to... " He's like, "I don't even have to do anything." I just read a story about a lizard in a cave that stayed completely still for seven years. If I realized that I could do that, I would do that, just immediately, without even... I'd be like, "Oh my God, that's the next seven years." Yeah, I don't... So, I don't wanna hit him hard for that, because, to me, that's something that has my deep respect and admiration.

43:23 Michael: I'd be on Sudoku. I would be on my phone playing Sudoku.

43:25 Peter: Right, just openly watching videos.

43:29 Michael: Yeah, putting the headphones in.

43:33 Rhiannon: Yeah, that's what I'm saying. There's different ways to be smart, and the way Clarence Thomas figured out how to be smart is not having to work at his job. I don't think that it's any sort of a really compelling legal brain, right?

43:47 Peter: No, I mean, he has a frame... Certain frameworks he operates well within. When you're looking at his argument in this case, which is purely political argument, really, like policy-making argument, that's where he's at his weakest. You see him sort of just as this flailing kind of mediocre intellect. There are other ways where I think he can be hard to reckon with. If you're fighting him on his terms, if you agree with the way he approaches something, then he's often quite effective. If you take a step back from the way he approaches something, I think he rarely is.

44:17 Michael: Yeah, I think that's right.

44:19 Peter: This case takes place in 2013. In 2016, it crawls back up to the Supreme Court, and pretty much everyone thought affirmative action was going down. It was just gonna... This would be the end of race-based considerations, and schools would have to come up with this increasingly convoluted network of policies to try to replicate it. And what actually happens is that it goes 4-3, the other way. And very shocking that Kennedy seemed to kind of just all of a sudden choose the pro-affirmative action side. We have theories about why this is the case. I think the good faith theory would be that Kennedy was persuaded, that they just... They abided by the framework that the court laid out in the early 2000s, and that was that. The less good faith argument, the more legal realist argument, is that Kennedy realized that affirmative action, as it now stands, is a shell of what it once was, that it doesn't really do what the schools want it to do, that diversity at the top schools is garbage, and that they'd effectively won, and you can keep this system in place, and it doesn't really impact the relative privilege of the privileged class.

45:41 Michael: It's fucking weekend at Bernie's. It's like, "Oh, affirmative action survived. The corpse of affirmative action is present." And this is one of the effects of affirmative action being decoupled from the idea of reparations and inequities, and instead tied to diversity, which is Kennedy talks about these programs increasing diversity at UT. I wish I had the numbers here, but it's like increasing Black enrollment from 4% to 7%, or something like that, and Hispanic enrollment from 14% to 17%. Texas is a fucking majority minority state. Hispanics are 40% of the population. African Americans are 12% of the population. And I'm not saying that it needs to... Their student body needs to perfectly jive with that, but the idea that these minuscule increases that still vastly under-represent minorities can be framed as any sort of meaningful progress, that's the fucking Conservative victory right there.

46:50 Peter: Right.

46:50 Michael: Like that's it.

46:51 Peter: So what's Abby Fisher up to? How's she doing?

46:53 Rhiannon: She apparently...

46:54 Peter: Is this correct? I heard that South of the Texas Rangers stadium in Arlington, Texas, there's a traffic light, and it looks like a regular traffic light at first, but if you look close, it's actually Abigail Fisher and she's just holding up the colors, and that's her job now.

[laughter]

47:10 Peter: Is that true? That's just something I heard.

47:11 Rhiannon: Yeah, basically, because... Basically, because she's a financial analyst at a bank.

47:16 Peter: Oh my God, even worse? I thought... I was like, "Wow, good for her. She's a traffic light now," but it turns out she's a financial analyst.

47:24 Rhiannon: Yeah, she graduated from LSU...

47:28 Peter: Sorry, Abby.

47:28 Rhiannon: Right. She graduated from LSU, works in finance, whatever the fuck that means. And wild to me, I wouldn't be so bold, but her LinkedIn is public and...

47:37 Peter: That is an unbelievable decision.

47:38 Rhiannon: She still looks like a spoilt glass of milk.

47:40 Michael: Did you just call her a spoilt glass of milk?

[laughter]

47:44 Rhiannon: Yeah. Yeah. Out on the counter, in the sunlight.

47:47 Michael: Justified, justified strong opinions.

47:52 Peter: Look, I don't wanna make remarks about her looks, because inequitable commentary about attractiveness has been used historically to denigrate and marginalize women, but I do have one comment, which is, sometimes you look at someone with heritage from UK or Ireland, and you think maybe you need more than a small island...

48:15 Michael: For the genetic diversity.

48:16 Peter: Right, just from a genetic diversity standpoint, before you can consistently churn out normal, healthy-looking people.

[laughter]

48:33 Peter: Alright. So I think that's it for this week. Next week, we are doing Shelby County v. Holder, a voting rights case. And now that I'm thinking about it, maybe a little too much racism back to back, but we're going for it.

[laughter]

48:48 Michael: Yeah.

48:49 Peter: We're going right in.

48:50 Michael: I think this is the worst opinion of the Roberts court.

48:53 Peter: Yeah, that's probably right.

48:54 Michael: Buckle your seatbelts.

48:56 Peter: It's upsetting to read. It's gonna be upsetting to listen to.

[laughter]

49:01 Michael: Get excited.

[music]

49:06 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

49:25 Leon Neyfakh: From the Westwood One Podcast Network.

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