Breyer will retire!

Big news! 

I'm reading the report in the NYT:

Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his pledge to name a Black woman to the court.

Oh, so there's a "pledge" and he'll need to "make good" on it. 

ADDED: We've already got affirmative action on the Supreme Court's agenda this year as we move toward the elections, and if Biden fulfills this pledge, it will intensify the political theater. He already fulfilled a black-woman pledge in selecting his Vice President, and there's a fair amount of disappointment in her. (She's got worse poll numbers than he does.) But that doesn't mean he should violate his pledge. (I'm assuming it is, indeed, a pledge.) He should elevate an extraordinarily impressive black female judge, so that the political theater is highly supportive of this kind of selection process, and the resonance with the pending cases helps the pro-affirmative-action side win favor with the people. 

ALSO: At WaPo, Neal Katyal, the former Solicitor General and a former law clerk to Breyer, has an op-ed that was all ready to go: "Breyer’s act of listening will pave the way to a healthier democracy." I thought the "act of listening" was going to be the act of listening to people who were telling him he needed to retire to give Biden a chance to nominate somebody before Republicans took back the Senate, but no, it's about judging cases:

A deep part of his listening practice was to pay attention to experts in the field. He often said federal judges are not experts on national security, or the environment, or the economy, and that a deep part of wisdom was deference to expertise. Breyer’s path was to triple check his personal impulses, and particularly so if they conflicted with the views of true experts on the question before him.

That's pretty sober and lofty, but here's how Katyal brings it in for a landing:

Consider just how different that is from the political debates today, where extremist ideology has attacked things that should be noncontroversial, from wearing masks to taking vaccines, from addressing global warming to protecting voting rights.

America stands at a crossroads. On one path is more toxic extremism, the culmination of which we witnessed on Jan. 6. Despite that armed insurrection, the path remains just as seductive as ever to many.

Armed insurrection?

The other path is quieter and more difficult to practice. It is a path forged by Breyer: respect for others, reverence for the law, and most of all, a commitment to listening to and learning from one another.

You know, if you want to be quieter and reverent and committed to listening to and learning from one another, you wouldn't have written "armed insurrection." Or "toxic extremism." This gets my "civility bullshit" tag.

And why shouldn't we be able to debate wearing masks and the best way to protect voting rights and whether we're getting accurate reports of the science about vaccines and global warming? We are not deciding cases and dictating what other people must do, the way the Court does. We're exchanging opinion in the public forum, debating and expressing ourselves! 

That's not "toxic extremism." It's toxic extremism to say that it is!

AND: From right before the 1980 election: "Reagan Pledges He Would Name a Woman to the Supreme Court" (WaPo). In June 1981, Potter Stewart announced his retirement, and Reagan got his slot to fill. I had just graduated from law school, and I remember telling my father that I was excited about the first woman on the Supreme Court. My father scoffed and said he didn't expect Reagan to make good on his pledge. He confidently asserted that the nominee would be William French Smith.

"When the court considers the Harvard and UNC cases, it would do well to reject the 'diversity' rationale entirely, or at least subject it to much tougher standards of review...."

"As one expert in an amicus brief supporting the plaintiffs pointed out, the 'Hispanic' or 'Latino' category lumps together such varied groups as Argentinians, Cubans, Mexicans and immigrants from Spain. 'Asian Americans'' include racial and ethnic groups that cover more than half the world’s population, such as Chinese people, Indians and Filipinos, among others. Such distinct groups as Arab Americans, native-born white Protestants and recent immigrants from Bulgaria are all classified as 'white.' 'African American' combines native-born Black Americans with immigrants from Africa and the Caribbean. Needless to say, these groups have vastly different histories. Lumping them into a few crudely defined categories makes a mockery of the idea that universities are genuinely pursuing diversity as opposed to engaging in gross stereotyping. Perhaps even worse, the diversity rationale could be used to justify all kinds of racial and ethnic preferences.... For many schools, however, the diversity rationale for racial preferences is likely a smokescreen for the real purpose: compensating minority groups that are victims of long-standing discrimination, particularly African Americans. This justification, which has largely been rejected by the Supreme Court, is much more logically compelling than the diversity theory."

Writes Ilya Somin at "Supreme Court affirmative action cases challenging Harvard, UNC policies are overdue/The Harvard suit features extensive evidence that the school’s admissions system discriminates against Asian American applicants" (NBC News). 

Somin says he has has "considerable sympathy" for the alternative rationale, but it's hard to imagine the Supreme Court switching from diversity to compensation for past discrimination, which it rejected as a basis for affirmative action long ago (in the 1970s). 

[T]o my knowledge I was the only Russian Jewish immigrant in my class at Yale Law School. Would 'diversity' justify Yale using ethnic preferences to make sure there was another the following year?

The words "make sure" load that question, but I think — as someone who has served on my law school's admissions committee many times — that it would be perfectly fine to read an applicant's file, find yourself on the line between yes and no, see that this person is a Russian Jewish immigrant, and go with yes. And that yes would be based on what the current doctrine requires — a prediction that this person's contributions will be beneficial to the class as a whole. It would not be based on the idea that Russian Jewish immigrants have been discriminated against in the past. 

How could I possibly assess all the various harms of the past and funnel the urge to compensate into this one applicant? There's no expertise to defer to. With diversity, there is a notion, however hazy, that the school's file-readers have some special intuition about putting together a good student body and making the classroom lively and full of challenging viewpoints. There's a mystique, a magic, a black box that the Court can decide to leave closed. I know many of you are scoffing at that box. But the easiest answer is to leave it closed, not to move to another rationale for affirmative action.

"The Supreme Court agreed Monday to hear challenges to the admissions process at Harvard and the University of North Carolina..."

"... presenting the most serious threat in decades to the use of affirmative action by the nation's public and private colleges and universities.... In the latest case, groups backed by a longtime opponent of affirmative action, Edward Blum of Maine, sued Harvard and UNC in federal court, claiming that Harvard's undergraduate admissions system discriminated against Asian American students and that UNC's discriminated against both Asian American and white students.... The challengers in both cases, Students for Fair Admissions, urged the justices to overrule the court’s 2003 decision on affirmative action, which upheld the University of Michigan's use of race as a plus factor and served as a model for similar admissions programs nationwide...."

NBC News reports.