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Nov. 3, 2022 - Lionel Nation
45:00
The Legal Issues in the SCOTUS Affirmative Action Case Explained

Affirmative action is neither.

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I cannot think of any issue more critical for us to discuss.
Than what's going on in the Supreme Court for a variety of reasons.
Not just the subject matter per se.
Not just the matter before is involving affirmative action.
Because that's part of it.
But this is something which I want more than anything else.
To be able to convey, to teach, to make people understand once and for all.
The Supreme Court and the Constitution versus legislature's policy.
I'm going to try this again.
I tried.
I tried very hard.
It's not like Billy Jack.
I tried.
I really tried to listen to just a second of various cable news shows that I cannot.
I cannot.
Because they...
They will not address this in terms of the actual legal issues before us versus the constitutional and the political.
What goes on with the court has nothing to do with what you and I would argue at the polls.
This is something which I'm sorry.
I wish it were different.
I wish we could change things.
I wish, but it's not.
And I'm going to give you an example of something.
I, personally, if I were to be involved in, let's say, the case of a politician, if I were involved in trying to craft policy, there are two issues to give you an example of.
One is abortion, and the other one is, and it's not really an issue now, but it could be, The death penalty.
I personally, personally, am against the death penalty as a policy.
As a policy, if I were a legislator, I would vote against it.
I would say, I don't think it's a good idea.
I think it's wrong for a variety of reasons.
Not even more, but by virtue of the fact that we don't really have the system in place to guarantee people safety and adequate due process, especially when their life is on the line.
But, listen carefully, this is the distinction.
There's nothing in the Constitution that prevents it.
Nothing in all that prevents it.
Nothing.
It's not unconstitutional.
So if I was a Supreme Court Justice, even though personally in my private life, as, let's say, a legislator or as a citizen, I would say, I don't like the death penalty.
If somebody were to bring a claim that says that the death penalty itself is unconstitutional versus is being unconstitutionally administered, that's a different story.
Then I would change my mind.
Then, then, but no.
Why?
Fifth or Fourteenth Amendment.
The government can take and deprive you of life, liberty, or property so long as you are accorded due process, meaning that the draft of the Constitution clearly envisaged the death penalty and death.
So it is constitutional, as long as there's due process.
When it comes to abortion, I happen to be what you would call pro-choice, meaning I do not believe a woman should be sentenced to prison For getting an abortion.
That's the bottom line.
When people say, are you pro-choice?
If you're really, if you are pro-life, if you are pro-life, not only do you want to prevent it, and by the way, this is not a constitutional, this is a political argument, not only do you want to prevent it, you want to make sure that anybody who is found guilty of this is in prison because you're taking a human life.
It's murder.
And you can't say, well, I'm pro-life, it's human life, but it's not really.
No, no, it's murder.
So it's one or the other.
An opinion.
An opinion.
However, there's nothing in the Constitution, nothing.
Nothing that provides a right to an abortion, especially after Adams, but even before that, in my humble opinion.
Even with Griswold, and even with Douglas, and even with privacy.
No, no, no.
But that was the law of the land.
And Roe was good.
Actually, Casey overruled, overturned Roe, but still.
So what exists in the Constitution has nothing to do with what you would vote for sometimes in the legislature.
That's all.
That's all.
Now let's look at what's happening right now.
And listen to me carefully.
Again.
Turn off your cable news.
It is a waste of time.
They're talking about issues.
What are we talking about?
In 2003, SCOTUS, Supreme Court of the United States, in a case called Grutter, G-R-U-T-T-E-R, Grutter, against Bollinger or Bollinger,
It ruled in a divided case that the University of Michigan Law School could consider in its admissions process as part of its effort to have and to provide and to assemble a diverse student body could use race.
Consider race as part.
This is 2003.
Sandra Day O 'Connor, who wrote the opinion, said, quote, the use of racial preferences will no longer be necessary to further the interest approved today in 25 years.
In 25 years, we're not even going to need this.
This is what she wrote.
Well, we're 19 years after.
And here's where we are.
You got that?
Okay.
2003, Grutter.
G-R-U-T-T-E-R.
1978, Bakke.
The Regents of the University of California against Bakke.
Upholding race.
Okay?
So, Bakke and Grutter.
Those are the cases.
And those, it looks like, are going to be overruled, overturned, reversed.
You got it?
You got it?
Now, what are the claims?
Who are the parties?
Who are the people?
What's going on here?
Who's saying what?
Good question.
You have two groups of people right now.
First, the lawsuits at the center of this dispute.
And by the way, there was a five-hour Our oral argument, this was like, wow!
This was a monster.
Five hours.
Wow.
It was a beaut!
It was a beaut!
I mean, this was something else.
Two cases here.
One.
Yes, yes, yes.
In 2014, they filed this case against Harvard College.
And the University of North Carolina.
It was a group called the Students for Fair Admissions, SFA.
The Students for Fair Admissions against Harvard College, one group.
The other one was University of North Carolina, and they consolidated these two lawsuits for purposes of this case.
Now, they say that as to Harvard College, ostensibly a private college, Harvard violates Title VI of the Civil Rights Act, which bars and prevents Entities that receive federal funding from discriminating based on race because it is alleged that Asian American applicants are less likely to be admitted than similarly and equally situated and qualified white,
black, or Hispanic applicants.
Okay, you got that?
That's Harvard.
Title VI Civil Rights Act.
Asian Americans treated differently.
In the other case, the University of North Carolina, the same group, Students for Fair Admissions, in this case, argue that North Carolina violates the 14th Amendment's Equal Protection Clause, which bars racial discrimination by government entities.
This is a state school.
By considering race in its admissions process, when the university does not need to do so.
For purposes of achieving diversity and the like.
You got it?
Equal protection, 14th Amendment here.
Title VI Civil Rights Act here.
That's where we are.
They're also asking that Grutter be overruled, overturned, reversed, and Bakke the same.
They're also claiming, this is interesting, North Carolina is using Brown against Board of Education because the S-F-F-A.
By the way, I call this the S-F-A because I believe the Proposition 4 is excluded, but I perhaps might be in the, pardon the pun, minority here.
North Carolina case, the lawyer for this told the justices that racial classifications are wrong.
And this is from Brown v.
Board of Education, 1954 case, ruling that Racial segregation in public schools finally and firmly rejected the idea that racial classification should be allowed.
Okay, you got that?
You got that?
That's where we are.
That's the argument.
And it was one of the best.
Please go back.
Do yourself a favor.
Turn off cable news.
Turn off this Oh my God, it's so bad.
Turn off.
Listen.
Try to get a hold of the oral arguments.
Fascinating.
And listen, listen to liberal justice.
And I hate to use those terms, but Kagan, Sotomayor.
By the way, Ketanji Brown-Jackson has recused herself because she was on the Harvard board and what have you.
So she...
She might have asked questions, but she's not going to be in any way ruling on this one or voting.
You got it?
That's it.
That's it.
Title VI, Civil Rights Act.
Equal Protection Clause, 14th Amendment.
That's it.
Now, what most people are going to be talking about is, should this be a meritocracy?
Not talking about that.
What colleges should do?
Don't know what should.
The Supreme Court's not saying what should happen.
Nobody's saying what should.
No, no, no, no, no, no, no.
They're not talking about that.
They're talking about something.
Does this violate?
Stop right there.
Stop.
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Equal to this as well.
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Preparewithlionel.com Now, let me try this again, my friends.
Let me give you this word.
Whatever the majority of the Supreme Court says, that's it.
So we have 4-4 here.
It's going to be interesting.
Ketanji Brown-Jackson is not voting, so we'll see what happens with this.
Now, let me ask you this question.
Why do you think it takes sometimes this long for a case to get to the Supreme Court?
Why?
Why hasn't this happened before?
This is the part that absolutely gets me.
Let me tell you, give me an example of one that you're not going to think about.
There was a case in 1974, a defunus.
Okay?
Listen to this.
This was the defunus case.
This was, I think it was a Sephardic Jew, University of Washington.
Law school, he didn't get in.
Marco de Funes, he was a white candidate, turned down in 1971.
But he was subsequently granted admission.
And the court said, well, he's in.
So, the Supreme Court said this.
So, basically, this is moot.
It's already been let in.
So, don't worry about it.
They granted cert, certiorari, to review it, and they said it is moot.
Same thing happened with, remember the case of the Pledge of Allegiance case?
Remember that one?
Remember him?
Michael, where the Supreme Court said, well, we'll grant cert, but you know what?
He doesn't have standing because of the fact that he He doesn't really have custody of his daughter.
The Supreme Court granted this.
Michael...
By the way, see what I'm doing?
It's called research.
Newdow.
Michael Newdow.
One of my favorite cases.
I was so excited.
They're going to be dealing with the Establishment Clause.
They're going to be dealing with this.
Nope.
They said, nah.
I said, why did you grant cert?
Why did you grant certiorari?
Why did you grant review?
Why?
Well...
You granted it to say he doesn't have standing?
Couldn't you have said...
But let me tell you about this De Funis case.
This is why it's so important.
In 1974, one of the most, you would say, liberal justices ever, ever, William O. Douglas, who was also very colorful.
This I'm going to read to you.
This is from the New York Times in 1996.
No, no, excuse me.
1974.
Pardon me, pardon me.
The unsigned majority opinion and the separate dissent by Justice William O. Douglas suggest, however, that the Supreme Court's evasive action in this case did not imply that it simply washed its hands of its unpleasant controversy.
The court noted, quote, if the admission procedures of the law school remained unchanged, There is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this court.
Can this be read as anything but a hint at the university to re-examine the policy?
Listen to this.
Justice William O. Douglas' dissent is even more significant.
He says flatly that any policy that is not administered in, quote, racially neutral way, is in violation of the Equal Protection Clause, no matter how socially well-intended.
Colleges and universities, just as Douglas holds, are not limited to, quote, mechanical criteria, such as test score rank in their selection of students.
Other factors, such as past deprivations as a result of racial discrimination, may properly be considered in a student's application.
But the Constitution is violated.
If such Now, that may sound great, and you may say, oh, that's terrific, and that solves that.
No.
Right now, and listen to me carefully.
Listen to me carefully.
If this were a liberal majority, this case would be ruled this way.
If it was a conservative majority, which it is now, it's going to be ruled this way.
Guaranteed.
The Constitution, the interpretation of the Constitution, is not based on some mechanical thing where you put it into this machine and the right answer comes out.
It doesn't happen like that.
I can tell you case after case after case.
The Supreme Court gave us Dred Scott.
The Supreme Court gave us Plessy against Ferguson.
Separate but equal.
This is the same constitution.
I've been doing this now forever.
This is really, really, this is my 40th year.
40 years.
Next year.
40 years.
Graduated from law school.
40 years.
And I have been trying to figure this thing out and just fascinated by how people see certain things and how our world changes.
Listen to me very carefully.
Our world changes.
We're using diversity.
Listen.
By the way, your likes are certainly appreciated.
Listen to what Clarence Thomas asks questions about.
What does diversity mean?
Listen to the way they speak.
Listen to this.
Remember, This is not a legislature.
This is not a debate.
This is not an election.
This is somebody talking about the Constitution.
And it is absolutely possible that the Constitution could be used, could be read, could be interpreted to uphold anything.
Anything.
We lived in a world, ladies and gentlemen, that allowed for interment.
Not internment.
Interment.
World War II.
Japanese Americans.
If you think there's something magical about this, if you think the answers always come out the same, no.
And what I want you to do, and what these news...
What programs don't do is they don't spend enough time explaining the constitutional argument versus the political argument.
What you would be arguing in a debate is different than what you would be saying to a court.
And I swear to you, it's easy and simple for the right number of justices to say that Affirmative action, specific racial or other demographic criteria used to ensure a particular type of diverse application is completely commensurate with and consistent with the constitution of protections and precepts.
Easy!
The same court could turn around and say, I don't think so.
I don't think so.
And you can cite cases that other.
This is the beauty, and this is the thing which I do not understand why people do not spend more time explaining this process to you.
Let me give you an example of something.
One time.
Two issues that happened with sports.
One was deflate-gate.
Tom Brady was accused of deflating his footballs to allow for better traction or gripping or whatever it was.
There was also a debate whether there should be the implementation and the use of technology for strike zones to call balls and strikes.
And it was some of the most brilliant commentary that took into account the history of games, specifically in the Balls and strikes.
The history of the game.
The human element.
You don't want to interrupt the flow.
This has been implemented in the past.
I mean, it was some of the most...
More care was taken for that.
And sometimes I hear people explaining the constitutional Now remember, meritocracy is a different question.
Meritocracy is a different question.
You can argue that.
You can, again, we'll go to a debate, we'll go to a stage, and we'll say, is this fair?
Do you think it's in society's best interest for a university to seek diversity?
Is there a problem with, let's say, there being a college campus where it is predominantly a single Ethnicity, race, is that a problem?
That's over here.
Great arguments, great questions, have at it.
Go for it.
The Constitutional is over here.
It's a different story altogether.
Is there anything in the Constitution, in either the Equal Protection Clause, 14th Amendment, Treating people differently.
If you're going to treat people differently, you might have a reason.
Let me ask the group here, our audience this morning listening.
Do we treat people differently in the United States?
Based upon gender?
Based upon age?
Based upon race?
Based upon height?
Weight?
Age?
Where you're from?
Do we?
Yes or no?
Do we treat people differently?
This shouldn't take too long, but I'll ask the question.
I'll allow you to weigh in as I sip my jama.
Do we treat people differently?
The answer, of course, as you know, is yes.
Absolutely.
Is that okay?
Of course we do.
Do we treat convicted felons different?
Yes.
Do we treat minors different?
Yes.
Do we treat men and women differently?
Yes.
Well, what exactly is this 14th Amendment?
Now, this is the best part.
Go to the 14th Amendment.
Very, very simple.
14th Amendment.
Oh, I got the privileges and immunities clause.
14th Amendment.
There's an old picture of me from...
You wouldn't recognize me if I showed you this.
14th Amendment.
Oh, here we go.
Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
That's all it said.
14th Amendment, Section 1. That's it.
Nor shall any state deprive any person of life, liberty, or property.
This is post-Civil War now.
Life, liberty, or property without due process of law, meaning we can kill you, we can lock you up forever, we can take your stuff.
Nor deny any person within this jurisdiction the equal protection of the laws.
What does that mean?
It's my favorite.
It goes to one of the most important and critical aspects of, I think, what people deal with when we talk about the notion of fairness.
Hey, that's not fair.
Ask a little kid.
Hey, you want to share a cookie with me?
Sure.
Here, let me cut it in two.
And you give him this little tiny piece and you keep this big.
Here you go.
Hey, what's that?
I said I would cut it in two.
Wait a minute.
You got a bigger piece.
I only said I would cut it in two.
That's not fair.
Everybody understands it.
So when is it?
Try explaining to a child.
Well, the reason why we're doing this is because, you see, I'm older than you.
And I bought the cookie, and I haven't eaten, and you have.
And the kid will say, uh-huh, I'm not buying that.
It's not equal.
Yeah, but I'm giving you a reason why.
I'm giving you a reason why there's inequality.
And the kid will say, I don't care what the reason is.
We have been debating fairness as long as we are here.
And it appears.
There's a wonderful site called SCOTUSblog.
I love to read.
Read the bare bones, what was said, what the issues are, and then we'll argue.
I'm not interested in the argument of what people think.
It doesn't matter to me.
I really don't.
I mean, I do not care.
When we talked about the abortion case in Dobbs, nobody talked about...
The constitutional provision, they were talking about reproductive rights and things like that, which the court argued, we're not saying that abortion is illegal, we're saying there's no constitutional right.
That was being lost.
And we go through this all the time, because people always look at Supreme Court cases as what you like.
Remember the flag-burning case?
One of my favorites.
I think it was, what, 9-zip, whatever they said?
No, you've got the First Amendment.
Provides you with the ability to burn a fly as a symbolic speech.
Now, we hate it.
We hate it personally.
They made it very, very clear.
There was a constitutional argument versus the emotional argument.
The political argument.
That sort of thing.
The Constitution is so...
Oh my God!
The Constitution...
It doesn't mention how many justices there are.
It doesn't mention marriage.
It doesn't mention the right to vote.
It doesn't mention the Air Force.
It doesn't mention anything.
I mean, it's good, but it's not exactly...
So what we are having right now is a case that came about since De Funis in 1974.
This case, which again, I provide to you.
Grutter against Bollinger, 2003 case, Bakke, 78. This has been coming for a long time.
And the issue is that when is this permissible?
And what is fascinating is how sometimes, in this particular case, many of the arguments that we hear today are interspersed in this.
Listen to Justice Thomas asked questions about diversity to define it.
What about underrepresented?
One of the conditions they're going to say is, and they will ask various school officials, what is the purpose of this particular class?
Well, we want to make sure that certain people are not underrepresented.
And here's the thing, and the argument that was going to be made.
Well, if somebody is underrepresented, that means somebody else is overrepresented.
And if you were To try to correct that, somebody is going to be overrepresented.
Somebody would say, well, what happens if we have a test, blind test admissions, and we look up and everybody who is admitted is Asian, Asian American.
You look around and say, well, wait a minute, hold it.
We had this rule that said you have the SAT scores of this, grade point average of this.
I mean, there are other factors, you know, also where are you from, what did you do, high school activities, how involved were you in the community, etc., etc.
But the issue that people were saying is, but if we don't do this, if we don't fix it, we're going to have an underrepresented sample.
So...
How do you correct an underrepresented if it's the application of racial considerations in situations where it matters?
Title VI of the Civil Rights Act, if you receive government money, Equal Protection Clause, 14th Amendment, if you are a government, if you are completely private, completely just not entangled at all in any type of...
Funding might be a different story.
But the Supreme Court is not going to be arguing, well, what's wrong with having an all Asian American, all white?
You're not interested in that, theoretically.
It'll seep into it.
That's not the interest.
That's not the question.
That is what is being heard at the legislation.
Or the legislature level.
Legislative level.
The political debate level.
Not constitutional.
Let me stop you right there.
Because, of course, at this level we must talk about.
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I, I, I believe in this.
And as I said, sometimes this, depending upon who's interpreting this, the Constitution, you will get sometimes a result you're not crazy about.
May I give you one of my favorites?
This is one of my favorites.
This is one of my favorites.
And I think I was the only one who cared about this, but I nonetheless provide this to you.
There was a case, when I was a prosecutor, we had this situation that would come up every now and then where somebody would be involved in a DOI case and there would be death bodily harm, great disfigurement, blah, blah, blah.
And they'd say, we want to take a blood sample.
And the person who was the suspect would say, I'm not consenting.
And under the statute it said, there's a death here, there's a...
Great bodily harm, disfigurement, whatever it is, we're going to take this from you.
And they will hold the person down and forcibly remove blood, kind of like vampires, from their vein.
Now the question is, is this a violation of the Fifth Amendment under the self-incrimination protections?
You are being forced to incriminate yourself.
The only thing they want is not your testimony.
They don't want to hear what you have to say.
They want your blood.
That's the case.
Your criminal charges, I mean, if that grams of ethanol alcohol per 100 deciliters of blood, that's the number.
That's it.
And the only way to get that number is to take that blood.
And I've always said, even as a prosecutor, this is self-incrimination.
This is the case.
The Supreme Court case, the Supreme Court in Schmerber, Armando Schmerber, Schmerber, I love that, against California said, it's non-testimonial.
What?
That's not what the Supreme...
The court never intended.
It was like you being forced to sit down and talk.
I said, where did you get this from?
This case is the blood.
Sorry.
You know what?
That's the law.
Sorry.
I can argue all I want.
I never got that one.
Don't understand it.
There are some times when you would say...
And I'm not arguing...
Whether DUIs are wrong, whether we need to do something.
No, I'm talking about what is self-incrimination.
What is, when is, according to these cases, is racial consideration verboten under Title VI of the Civil Rights Act, under Equal Protection Act of the 14th Amendment?
Is it just always?
Can you take it into account a little bit?
I mean, is there race just...
Does it matter?
Or gender?
This is what's being...
If it's a factor versus the sole criterion, when is the 14th Amendment, when is the Civil Rights Act violated?
I don't know.
Now, we can talk about, again, like the usual people on cable news, whether it's right or wrong.
My question is simply this.
Are you saying it is never allowed or it's allowed sometimes?
And if it's allowed sometimes, what are the rules for sometimes?
What are the rules?
If somebody goes before, if somebody says, if a university says, we have not had, based upon our criteria or whatever the criteria are, we have not had an African American or an Asian American or a Hispanic American or whatever it is, Student in 20 years.
And we're looking at our campus and it is not diverse.
It is not racially heterogeneous.
It is not diverse.
It is not multicultural.
We believe that society benefits from that.
What may we be allowed to do in the consideration of applications?
That takes into account the benefit of diversity and such.
What may we do?
Those are the questions I guarantee you are not going to be answered by any case of the Supreme Court.
They're not going to give you any kind of like, well, here's the ground rules.
This is what you should be doing from now on.
No, no, they won't argue this.
And they will say, this violates this.
And they'll say things like, while it may take into consideration race, it cannot use race.
I don't even know what that means.
But this is a case.
Now, between this, between the Paul Pelosi investigation that is going on right now, and with the midterms in six days.
This is This may be too much for many people to handle and to concern yourself with.
But I will try.
Let me say to you as I first started, if I can teach you something, if you can be this, I want you today to go out into the world and say to your friends, well, that's not what the Supreme Court is doing.
The Supreme Court is not a legislature.
They're not Crafting policy.
They're not writing statutes.
They're interpreting.
And they're saying, does this policy violate...
And based upon the evidence that is being presented, there are people, by the way, who make a lot of money advising others how to get into Ivy League schools, and it has been said...
And it has been suggested that in some cases people should hide their ethnicity, hide their name, hide their extracurricular activities based upon evidence which indicates that people of a certain demographic are treated differently than somebody else.
And if so, does that violate Title VI and the 14th Amendment?
Boom.
That's it.
Now, whether it's good or bad or evil, or whether the NBA or the World Series should be based upon how diverse...
No, no, no, no.
Those are interesting questions.
The Supreme Court's not dealing with that.
Not dealing with that.
It's very specific.
And believe it or not, it is the most fascinating.
And you...
Americans are charged with knowing this.
All right, my good friends.
Thank you for this.
Don't forget to preparewithlinel.com.
Preparewithlinel.com.
Go there right now.
Prepare for food shortages that are coming.
And mypillow.com.
Promo code Lionel.
Thank you for this.
Focus.
Focus.
Know the issues.
Critical thinking.
Critical analysis.
Issue analysis.
What are we doing?
What are we talking about?
What are the parameters of this?
What is SCOTUS doing?
This is one of the most fascinating cases.
Because if, and this is the most important case, if Bakke and if Grutter are both overturned, overruled, reversed, in addition to Dobbs, this will be forever written as one of the most cataclysmic Maybe second only to the Warren Court in terms of seismic changes that have occurred in our Constitutional Republic.
Thank you, my dear friends.
Have a great and a glorious and a wonderful day.
Thank you so much for watching.
We'll be back tomorrow.
Same bad time, same bad channel.
9 a.m. Eastern Time.
And don't forget, until then, the monkey's dead.
The show's over.
Sue ya.
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