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I thought April Fool’s Day came early to the Legal Theory Blog when I saw an article authored by Justice O’Connor titled “Affirmative Action in Higher Education Over the Next Twenty-Five Years: A Need for Study and Action.” It is a book chapter, co-authored with Stewart J. Schwab (Cornell) that was originally published in 2010, in a book titled The Next Twenty-five Years: Affirmative Action in Higher Education in the United States and South Africa. It was only posted to SSRN on 12/20/15 for reasons that are unclear.

Here is how the authors describe the majority opinion in Grutter:

The article keeps speaking of “the Court” when it is clearly O’Connor who singularly determined the outcome of the case. (See also her concurring opinion in Lawrence v. Texas insisting that same-sex marriage is not compelled by the Constitution). The authors also dismiss the relevance of the famous, but meaningless “25 year” clock, which apparently inspired the title of the volume.

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

The authors write that “the 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative action program in 2028. Those justices will be charged–as Lewis Powell was in Bakke in 1978, and as the Court was in Grutter in 2003–with applying abstract constitutional principles to concrete educational endeavors.”

During oral arguments in Fisher I, Justice Breyer noted that we are nine years into the 25-year clock.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Scalia also asked about the clcok:

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.

MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -­

JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.

And in Fisher II, the Chief Justice used the same clock:

CHIEF JUSTICE ROBERTS: Well, you’re talking about the time ­­ Grutter said that we did not expect these sort of programs to be around in 25 years, and that was­­ 12 years ago. Are ­­ are we going to hit the deadline? Is this going to be done on ­­ in your view in 12 years?

…

And so it was important in Grutter to say, look, this can’t go on forever, 25 years. And when do you think your program will be done?

Justice Scalia also got in on the fun:

JUSTICE SCALIA: Mr. Verrilli, do you ­­ you think all of this won’t be necessary in another 13 years ­­
GENERAL VERRILLI: Well ­­
JUSTICE SCALIA: ­­ where we stop disadvantaging some applicants because of their race.
GENERAL VERRILLI: What I think about that is that the ­­ the Court, I think, made a prediction in ­­ in Grutter that that would hopefully be the case.

“Hopefully.”

Incentives matter. Five years ago, the Department of Transportation published a well-meaning rule: if passengers are kept on the tarmac, the airlines are assessed a fine of $27,500 per passenger. Unsurprisingly, with such a prohibitive fine, the incidence of airlines keeping passengers on the tarmac for three hours has plummeted.

U.S. airlines reported 207 tarmac delays of three hours or more (of over 25 million scheduled flights) for the five years after 2010, according to DOT data. In comparison, U.S. airlines reported 5,618 long tarmac delays (of more than 29 million scheduled flights) for the five years before 2010. (See chart below.)

So how did the airlines deal with this new rule?A new study by Dartmouth and MIT found that instead of letting passengers linger on the tarmac, instead they simply cancelled the flights and rebooked the passengers to fly home later.

The study found that five-year-old rules established by the U.S. Department of Transportation decreased tarmac delays, especially long ones, but it had an unintended effect of causing other passenger delays mainly because flight cancellations rose and passengers required rebooking. …

“It’s good that the rules saved time on the tarmac, which is really painful to travelers, but it causes extra delays that are three times as long,” said Vikrant Vaze, an assistant professor at Dartmouth’s Thayer School of Engineering.

So which is worse? Sitting on the tarmac for three-plus hours, or scrambling back into the terminal to get rebooked? My experience–the former, by a lot. Have you ever been on a flight that was cancelled? What happens is immediately 200 people storm the customer service desk, fighting for one of the few remaining standby seats available. (Passenger with higher status prevail over those who scream louder). If you have a connection? Forget about it. There’s no way you’ll make it. Once I got stuck in Phoenix for the night because my connecting flight landed an hour late–I missed the last flight of the night to Houston by about 3 minutes. It was always my sense that a delayed flight is better than trying to catch a later flight.

The study offers a series of suggestions to make things less bad.

The researchers think “a better balance between the conflicting objectives of reducing the frequency of long tarmac times and reducing total passenger delays” can be reached with a few tweaks to the existing rules, Vaze said.

Here are their suggestions:

* Change the tarmac time limit to 3.5 hours.

* Apply the tarmac limit rule to only flights with planned departure times before 5 p.m.

“This adverse side-effect from the rule gets progressively worse later in the day because there are fewer flights to be rebooked on and people may have to stay overnight in a hotel,” Vaze said. “The sweet spot seemed to be 5 p.m.”

* Redefine the tarmac time limit as of when a plane begins returning to the gate, instead of when passengers are allowed to deplane.

The penultimate point is painfully true. It is cheaper to pay for everyone on the plane to stay in a hotel, than to have to pay the $27,500 fine. (My stay at the Phoenix-Sky-Harbor Embassy Suites was about $70 with the voucher).

When the government effectively prohibits one form of intolerable travel, the airlines shift to a cheaper, even more intolerable form of travel. Incentives matter.

 

The tempest in a teapot over Justice Scalia’s questions during arguments in Fisher II concerning the mismatch theory were predictable, and uninteresting. Before the transcripts had even been released, the internet blew up as pundits pursuing agendas took the out-of-context pull quotes entirely out of context. (By the way, this is yet another reason the Justices will never allow live recordings–before the case would even be submitted, a clip would be up YouTube faster than Steve Harvey can announce the next Ms. Universe).

But even after the initial outrage–when the transcript was released and the context of Scalia’s question was made clear–people were still outraged. The meme continued that Scalia’s opposition to affirmative action must be borne out of racism, and could not have anything to do with constitutional law. Notwithstanding the fact that one of the elements of the strict scrutiny inquiry is whether the government policy actually serves the compelling governmental interest–mismatch could be viewed as casting doubt on that proposition.

This outrage is par for the course with the growing tide of campus/elite censorship of ideas that fall outside the social-justice-safe-space: any opposition to an idea we like based on constitutional norms can only be due to the racist heteronormative patriarchy. Or something like that. A colleague suggested that the unrest on campuses could even affect the outcome of Fisher II–that to avoid further uprisings, a certain Justice may not invalidate the UT program. I replied that fortunately, most colleges are out of session by June 28, 2016, so any unrest would have to wait for classes to resume in the fall.

For that reason, I was ecstatic to see that President Obama has once again stood up for the values of free speech on college campuses, specifically referring to affirmative action, during an interview on NPR.

OBAMA: As I’ve said before, I do think that there have been times on college campuses where I get concerned that the unwillingness to hear other points of view can be as unhealthy on the left as on the right, and that, you know …

INSKEEP: Meaning listen to people that you might initially think are bigoted or …

OBAMA: Yes, there have been times where you start seeing on college campuses students protesting somebody like the director of the IMF or Condi Rice speaking on a campus because they don’t like what they stand for. Well, feel free to disagree with somebody, but don’t try to just shut them up.

If somebody doesn’t believe in affirmative action, they may disagree — you may disagree with them. I disagree with them, but have an argument with them. It is possible for somebody not to be racist and want a just society but believe that that is something that is inconsistent with the Constitution. And you should engage.

So my concern is not whether there is campus activism. I think that’s a good thing. But let kids ask questions and let universities respond. What I don’t want is a situation in which particular points of view that are presented respectfully and reasonably are shut down, and we have seen that sometimes happen.

I want to post this quote on every bulletin board in every classroom in every law school in the country: “It is possible for somebody not to be racist and want a just society but believe that that is something that is inconsistent with the Constitution.”

Thank you President Obama. This is exactly right.

The exchange begins around 29:50.

Dear Friends,

By donating $15 before the end of 2015, you can help send the winners of our Virtual Supreme Court competition to Washington, D.C. to celebrate Constitution Day in September 2016.

Since 2010, through our innovative approach to online legal education with FantasySCOTUS, the Harlan Institute has taught thousands of high school students about our Constitution and the Supreme Court.

This year, students can compete in three great contests in the Fourth Annual Virtual Supreme Court.

The Virtual Supreme Court, a collaboration with ConSource, asks students to consider whether race-conscious affirmative action is consistent with the Fourteenth Amendment in the context of Fisher v. University of Texas. You can see the winning briefs from 2013 (Fisher I), 2014 (Noel Canning), and 2015 (Zivotofsky).

Teams of two students choose one side of the issue, write appellate briefs, submit YouTube presentations, and engage in oral arguments against other students using Google+ Hangouts. During the moot court sessions, Harlan and ConSource judges ask the students questions, and challenge them on their briefs.

This virtual competition allows students across the country to engage in cutting-edge constitutional issues

The grand prize for the top two students is a trip to Washington, D.C. to celebrate ConSource’s Constitution Day 2013. Members of the runner-up team will each receive an iPad.

I ask your help to support the prizes for these amazing students.

100% of your tax-deductible donation will be used to cover the costs of bringing the students to our nation’s capital.  The Harlan Institute has no salaried employees, and all of our overhead costs are covered by sponsorships.

I thank you for your support.

Sincerely,

Josh Blackman
President, The Harlan Institute

The Times has a profile about Mayor De Blasio, half-way into his first term. In the quasi-mea-culpa De Blasio says, “I want to do better.” But I was struck by this:

And he conceded that after a long career as an advocate and strategist, the work of leading 8.5 million New Yorkers has proved more complicated than he expected.

“When you actually have to start with the substance,” Bill de Blasio said on Monday, “the world gets a little more interesting.”

That reminded me of a quote from Charlie Savage’s new book from a “Senior Obama Administration official.”

It was around this time that a senior member of the Obama legal team told me that governing had turned out to be more complicated than criticizing from the private sector or campaigning.

Birds of a feather.