Category Archive

What ails us? That is, what do Americans deeply disagree about, and what causes the sense we’ve lost our way? I think they’re related, and that they tie in with this week’s federal holiday. Let’s go through the standard list of our national concerns. It’s not about foreign policy. There’s still a general consensus, which I share, that a cautious interventionism abroad to protect our interests makes sense. I don’t think that President Trump’s decision to kill a terrorist general will be a generally unpopular one. Or look at it this way: If President Obama were still president and had …

According to the Reuters news service last week, “Democratic presidential candidate Michael Bloomberg would seek to standardize federal elections across the United States and prevent states from blocking felons from voting under a plan aimed at expanding access to elections rolled out on Friday.   …   Under the voting rights plan, Bloomberg would seek to create a non-partisan commission that would look to standardize federal elections, including forcing states to restore voting rights to felons and prohibit them from charging onerous fees to get those rights back.” But it would be unconstitutional for the federal government to require states to allow …

Virginia governor Ralph Northam was humiliated and almost forced to resign early last year when it came to light that he had, as a medical student, appeared in blackface in Michael Jackson impersonation contests.  The issue is not whether this really is a grievous sin; the point is that, for most politicians these days and certainly any Democratic politician, such a revelation requires extreme contrition. And so Governor Northam will apparently spend the balance of his term embracing any race-based, politically correct initiative he can think of.  And he’ll do so even if the proposal is actually antiblack, so long …

In the Japanese Relocation Cases during Word War II, Chief Justice Stone observed, “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” That remains one of the best statements of colorblind law ever. Stone went on to address its reach (application) during the war: “The adoption by government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace …

Less than a year from now, Americans will be choosing a new president.  From my perspective at the Center for Equal Opportunity, the Democratic candidates are so far uniformly appalling, each trying to outrace the other to the Left — supporting reparations and busing, condemning the criminal justice system as racist, you name it. And Donald Trump and his administration — how’s that record after nearly three years?  Well, it’s a mixed bag.  As a lawyer and CEO’s general counsel, my focus is on the extent to which the legality of race-based decision-making is being supported or opposed.  Racial preferences …

A Conversation with Althea Nagai Althea Nagai, Ph.D., is our research fellow at CEO and the author of our studies of preferences in admissions in higher education, the most recent one of which examines their use at five public universities in Virginia. The other day I caught up with her in the hope of learning more about how she thinks about these matters. I was not disappointed, and trust that you will not be either. Here is my conversation with her, which treats issues in the news, including Harvard’s use of race in admissions, the consistently discriminatory fate of Asian …

Last week President Trump created some controversy — so what else is new? — with his off-the-cuff remarks.  This time it had to do with his criticism of Rep. Rashida Tlaib (D-Mich.) and Rep. Ilhan Omar (D-Minn.) for their criticism of Israel.  “Where has the Democratic Party gone?  Where have they gone, where they’re defending these two people over the state of Israel?  And I think any Jewish people that vote for a Democrat, I think it shows either a total lack of knowledge or great disloyalty.” Now, the controversy centered on the term “disloyalty,” and whether it implied that …

Law professor Eugene Volokh asks the useful question: “When does the U.S. Constitution allow government officials to discriminate based on race?” Courts have said that “governmental racial classifications”—policies that sort people into racial categories—are presumptively impermissible, yet acceptable if the government makes a strong justification for them. “The legal rule is . . . the strict scrutiny test,” says Volokh. Accordingly, to be deemed constitutional, a race-based policy must be “narrowly tailored” to achieve a “compelling government interest.”  There is, of course, some pertinent history. Law professor Stephen A. Siegel says that by 1940 narrow tailoring had become “the oldest …

The Trump administration is to be commended for the new regulations that the Department of Housing and Urban Development is proposing for enforcement of the Fair Housing Act, aimed at changing the disparate-impact approach used in the Obama administration. This is the approach whereby a defendant can be held liable for housing discrimination when it has a policy that is nondiscriminatory on its face, is evenhandedly applied, and was adopted with no discriminatory intent — but which leads to politically incorrect statistical imbalances. So, for example, if a landlord would prefer not to rent to individuals with a history of …

The Justice’s Best Work At the top of my (short) list of “Stevens in Memory” is John Paul Stevens’s separate opinion in the Bakke case, decided in 1978. You’ll recall Allan Bakke, especially if you repair even just occasionally to this site. Bakke was the aspiring medical student who despite strong academic credentials was rejected by the Medical School at the University of California at Davis. Bakke, who is white, sued, alleging racial discrimination inasmuch as the school gave him less of an opportunity than it did minority students to compete for a seat. As I saw the case then …