In Defense of Justice Scalia

In the past few days, I’ve seen a lot of stuff like this popping up on my Facebook feed. 

This is in response to Justice Scalia’s “Suggest[ing] Blacks Belong at ‘Slower’ Colleges.” And that he “Thinks Black Students Belong in ‘Slower’ Colleges.

Where is this coming from?

In case you missed it, the Supreme Court held oral argument for Fisher v. University of Texas at Austin, to decide whether race-conscious admissions should be upheld. If you’ve read any reactions on social media, then you’ve probably heard that Justice Scalia “suggest[ed] that some black students might belong at “slower-track” universities.”

Justice Scalia certainly received a lot of criticism for espousing such an antiquated idea. Senate majority leader Harry Reid denounced Scalia for endorsing “racist ideas” from the bench, stating “[t]he idea that African-American students are somehow inherently intellectually inferior from other students is despicable. . . . It’s a throwback . . . to a time that America left behind a half century ago.”[1]

It seems lots of people are angry. I’ve even seen one law professor from a second-tier law university suggest that we should begin putting the word “Justice” in quotation marks when referring to Justice Scalia.

Well, despite all the rhetoric: Justice Scalia never said that he thought black students were dumber or belong at slower universities.

To fully understand this, you have to understand the purpose of oral arguments.

By the time the Petitioner stands at the podium before the Supreme Court for oral argument, both sides have already done extensive research, come up with their legal theories, written briefs detailing those theories, and then submitted those briefs to the court. Indeed, 99% of the advocacy is already complete when the oral argument begins.

So then why do we bother with oral arguments at all?

Basically, it’s to make the lawyers for each side look like idiots. The Justices (who are supposed to be neutral at the outset of the case), attempt to poke holes in each side’s legal theory. To do this, they rely heavily on hypothetical examples, arguments at the margin, and other logical and rhetorical devices. The oral argument process affords the arbiters an opportunity to test the limits of each side’s legal theory­, to ensure it is sound.

Anyone who has gone to law school and done a round of oral arguments can tell you that just because you put forward an idea at oral argument, doesn’t mean you actually believe that idea. Here’s a prime example of John Roberts pushing the limits of the Solicitor General Donald Verrilli’s argument in favor of the individual mandate for the Affordable Care Act in NFIB v. Sebelius. Roberts ended up upholding the individual mandate, despite his prodding questions. He was, in fact, playing the devil’s advocate.

So when Justice Scalia engages in oral argument, he is trying to find any sort of flaw in the attorney’s legal theory. To do that, Justice Scalia may choose to borrow arguments from other parties and see how the attorneys react. In fact, that is exactly what happened here.

Justice Scalia’s controversial statements came in response to the argument that ending affirmative action would lead to a decrease in the enrollment of black students. Justice Scalia responded:

“There are those who contend that it does not benefit African-Americans to get 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 – a slower track school where they do not 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. They come from lesser schools where they do not feel they’re being pushed ahead in classes that are too fast for them. I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.”

Paraphrased, Scalia basically said, “some people have found that black students who get into the University of Texas simply because of their race actually aren’t benefited in the long term because they can’t handle the rigor of the University of Texas. Maybe those black students would be better off at universities where they wouldn’t struggle so much.”

As it turns out, Scalia wasn’t putting forth his own genuinely held racist ideas that black people are stupider than white people. He was articulating arguments put forth in an amicus curie brief summited by two members of the United States Civil Rights Commission. That brief articulates a theory known as the mismatch effect. A theory which has been put forth by law professors at UCLA and Stanford Law.  A theory which is based on quantitate studies purporting to show that students who got into more rigorous institutions because of race do worse that students who went to less rigorous institutions in the long run.[2]

In other words, Scalia was asserting a well-established, well supported, and intelligently crafted counterargument.

Now, maybe this counterargument was flawed. Maybe the data is bogus (Hint: it probably is). But that’s beside the point.

Justice Scalia was putting forth a counter argument in a forum where he was supposed to be putting forth difficult counter arguments. He put forth a counter argument, endorsed by law professors at two of the finest legal universities in the country. He put forth a counter argument that had considered actual data regarding how students behave. He was putting forth a counterargument that deserved to be addressed. He was doing his damn job.

Rather than looking at this information and deciding whether such an argument has merit, Twitter, Facebook, Huffington Post just decided it would be easier to call Justice Scalia a racist and draw pictures of him wearing a confederate flag.

That’s disappointing. Because, for people who care so much about free speech, we sure tend to ignore what people actually say.

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[1] For those keeping track, Justice Scalia never said that black students were intellectually inferior. This is a straw man fallacy. Don’t fall for it.  

[2] Despite the rhetoric, this isn’t based on a premise of racially superiority. For a related train of thought see Malcom Gladwell’s David and Goliath, which basically argues that students (of any race) are better off being a brilliant student at a mediocre institution rather than a mediocre student at a top-tier university.