"I loved the D.C. Circuit... and I could've stayed there. But I think I got maneuvered into this job. And then I had a really bad interview."

Said Clarence Thomas in this wonderful hour-long conversation with Harvard Law School Dean Martha Minow. The Harvard law students give him a standing ovation as he arrives in the room, and he jokes "I should quit while I'm ahead."

In fact, he goes on to be warm, interesting, deep, smart, and there's just way too much good stuff in here for me to quote everything that jumps out, because, really, everything jumps out. If you skip over the long introduction and get to the first question, he talks about growing up among illiterate but good and loving people and then discovering reading at a segregated library in Savannah. The librarians introduced him to Dr. Seuss.



Minow and Thomas talk about their mutual love for a book about introversion called "Quiet," and Thomas characterizes himself as very introverted. He talks about working in all 3 branches of government and greatly preferring the judiciary because in the EEOC and in the legislature, though he loved the people, it was too political. "I don't understand politics.... It made my head hurt.... It was like new math."

ADDED: He says Ruth Bader Ginsburg and Elena Kagan are delightful. When Kagan arrived, he said to her: "You know, it's going to be a joy disagreeing with you for years to come."

AND: At oral arguments, Justice Breyer doodles stick figures. The 2 of them sit together at oral argument and share jokes and laugh. "You know, he's very smart, but he's sort of a moving around smart," he says, making a gesture as if he were moving Breyer's little stick figures around. "And I tend to be someone, I lock into something, I want to think it through for a long time, and he likes to move around, and I sort of rein him in. Every so often, what I'll is I'll say, 'What about this, Steve?' and he'll pop up and ask and a question." So that's how Clarence Thomas asks questions at oral argument. Thomas laughs because it's "just something I'm throwing out," and Breyer makes it into a question.

"Who of a certain age could forget when a bookish black woman named Anita Hill addressed a Senate committee of 14 white men..."

"... and candidly spoke of graphic sexual harassment by then-Supreme Court nominee Clarence Thomas? The explosive, race-tinged hearings in 1991 had all of America, especially black America, captivated. Sexual politics became part of the lexicon, and Hill became a divisive figure. We know what became of Thomas — now we get a rare glimpse into Hill's private life with friends and family, who stood by her through it all."

From "14 Films That Matter at Sundance" at The Root.

After 7 years of not speaking during oral argument, Clarence Thomas spoke...

... and whatever he said was drowned out by the laughter of those in the room. 

Apparently, it was some kind of joke about what a Yale law degree connotes. We know how he feels about his law degree. Here's what I wrote back in 2007 when he gave an interview to "60 Minutes":

"I was never a liberal. I was radical," he says, talking about how difficult it was for him to go to work for a Republican after he graduated from Yale Law School. His Yale Law degree was worth almost nothing, he says. Though he graduated in the middle of his class, he couldn't get a job, and he was enraged to see that the degree meant one thing for whites and another for blacks. Everyone assumed he got into Yale because he was black, and not because he had grown up in severe hardship, and yet had always done well in every environment -- from all black to all white.

ADDED: According to the NYT, Thomas leaned over to the microphone and uttered a remark that the stenographer captured as "Well – he did not —." Laughter is noted. The topic at the time was the definition of constitutionally adequate counsel, and Justice Scalia had just noted that one lawyer had gone to Yale Law School and another to Harvard. Supposedly, according to some people who were in the courtroom, Thomas said something that meant that a law degree from Yale could be proof of incompetence.

[Thomas has] complained about the difficulty of getting a word in edgewise on an exceptionally voluble bench. The garbled transcript offers some support for that final rationale.

Indeed. On the other hand, the intense interest we're all showing now might encourage him. Say anything at all and it will be big news.

"People Get Ready."

A fabulous 1965 recording by The Impressions. Don't confuse it with "Get Ready," by The Temptations, which is a completely different song. Some people even confuse The Impressions and The Temptations. "Get Ready," from 1966, was written by Smokey Robinson. (Here's how Smokey did it in 1979.)

As you may have noticed, I got absorbed with the word "get" earlier today. "Let's get out of here" and "You just don't get it, do you?" are 2 famously recurrent lines in movies. In the comments, I was saying:

"Get" — the word in both cliche lines — is a funny word. I've noticed that professional writers -- e.g. lawyers -- will replace the word "get" whenever they can (with seemingly more proper words like "obtain" and "acquire" and "depart" or "arrive"). It's like it's not a regular word. It's so useful we shouldn't use it.

And:

"You just don't get it" is a fascinating phrase. It was huge during the Clarence Thomas hearings. Do you remember? It's used to exert psychological pressure. You're trying to persuade someone that a particular viewpoint is correct, and you're jumping to this level of disgust and disbelief, essentially telling the person that they are dumb and isolated from all the people who already understand. It's not just that you don't agree with me already, you're some kind of outcast.

St. Croix said avoiding the word "get" is "a class thing," and professionals who avoid it are trying to sound "high class," trying "to impress." That made me do a little search to see whether the Supreme Court suppresses the word "get," and found it in only one third of the cases in the past year. Often it was a quote, like "Have you ever tried to get cow s*** out of a Prada purse?" (which is a cute low/high mix). Justice Scalia began a dissenting opinion with: "Let me get this straight..." (which might be taken as a deliberate working-class affectation). I'm seeing the word used in colloquial phrases like "get around," "get it backwards," and "get it right." Following natural speech patterns, "get" would appear much more frequently, so I say there's active suppression.

I ran across the famous Oliver Wendell Holmes Jr. sentence about free speech and the marketplace of ideas:

"But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Imagine what the standard present-day legal editor would do to that sentence: the best test of truth is the power of the thought to gain acceptance in the competition of the market. (The editor would also try to purge the passive voice by fiddling around with the subject — maybe it should be "competition" — toying with the notion of making "test" the verb, and fretting over whether "test" and "market" amount to a mixed metaphor.)

Lawyers and judges just don't get that "get" is a fine word that shouldn't be replaced by boring longer words. When it comes up naturally, as you'd use it in speech, that's where it belongs. It feels natural because it's won in the marketplace of people talking to each other over the centuries, carrying out their affairs in real time. "Got" is true.

As I said, I got — got! — absorbed in the word "get" today, and I got — got! — interested in figuring what's the best song with the word "get." A marketplace of "get" songs. "People Get Ready" won. (Look at how many cover versions there are!) Other contenders — in addition to the above-mentioned "Get Ready" — are: "I'll Get You"/"Get Back"/"Getting Better"/"Got to Get You Into My Life" (The Beatles), "Get It While You Can" (Janis Joplin), "Get Off of My Cloud" (The Rolling Stones), "Get on the Floor" (Michael Jackson), "I Get Around" (The Beach Boys); "Can I Get a Witness" (Marvin Gaye), "We Gotta Get Out of This Place" (The Animals).... That's just stuff easily picked from my 1960s-leaning iPod.

My point is: What a hard, sharp word! Use it.

(And: "People Get Ready" = sublime.)

"Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us!"

Frederick Douglass, quoted by Clarence Thomas.

Arlen Specter has died.

He was 82.

ADDED: He played an important role in Supreme Court nominations:

Arriving on Capitol Hill in 1981, he became a dominant force during the Judiciary Committee’s rancorous Supreme Court nomination battles. More than anyone else, he helped defeat conservative nominee Robert Bork in 1987, and his aggressive questioning of law professor Anita Hill four years later — he accused her of “flat-out perjury” — helped secure Clarence Thomas’s confirmation....

“He was a Rockefeller Republican, a liberal Republican, and was willing to take on Presidents Reagan and Bush, and became a true leader in the bipartisan efforts that strengthened all the civil rights laws and defeated Bork,” said Ralph G. Neas, a longtime civil rights and health-care advocate.

“Then you had a line of demarcation,” Neas said, beginning with Thomas’s Supreme Court nomination and continuing with the Republican majorities in the House and the Senate after the 1994 midterm elections. “Arlen Specter became an especially cautious politician,” Neas said....

After Sen. Specter warned President George W. Bush not to nominate judges who would overturn Roe v. Wade — the 1973 Supreme Court case that essentially legalized abortion rights — conservative Republicans protested his appointment to the Judiciary Committee. Sen. Specter later said he would not use a “litmus test” to deny confirmation to abortion opponents.

He presided over the confirmations of Supreme Court Justices John G. Roberts Jr. and Samuel A. Alito Jr. and was a key force behind passage of some of the Bush administration’s controversial anti-terrorism laws, including the Patriot Act. But as controversy erupted over the government’s handling of detainees at Guantanamo Bay, Cuba, Sen. Specter became a leading proponent of habeas corpus rights for unlawful combatants.

I was just watching old clips from the Bork and the Thomas nomination hearings — because, after the VP debate, I wanted to review Joe Biden's performance.

Clarence Thomas rejects the idea of a judge having a methodology of constitutional interpretation.

Or so it seems. He said:

“You’re supposed to say there’s some angle, some methodology you’re pushing... There’s originalism. There’s textualism. All these useless peripheral debates other than just doing our jobs as best we can.”

Just doing my job as best as I can. That's the modest-selfless-judge methodology... the methodology that dares not call itself a methodology... the methodology embraced by every Supreme Court nominee when he/she comes before the Senate Judiciary Committee ... at least ever since that one guy got borked.

Thomas was interviewed by lawprof Akhil Reed Amar — who has a new book out, "America's Unwritten Constitution: The Precedents and Principles We Live By." I bought that and I recommend it. I got the Kindle version, which allows me to tell you that it contains only 2 mentions of Justice Thomas by name. There's an endnote at 551 about the "contrasting visions" of Brown v. Board of Education "on pervasive display" in the 2007 school integration case Parents Involved in Community Schools v. Seattle School District No. 1, referring to Thomas's "politically conservative reading." And there's a reference, on the same page, to Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2d Amendment incorporated in the 14th Amendment).

"Ann suggests that the Supreme Court striking down the law might help Obama's political fortunes."

"Glenn [Loury] disputes this, while observing that conservatives have certainly benefited over the years from the Court's pro-abortion rulings. They discuss the uproar over Massachusetts Senate candidate Elizabeth Warren's Native American ancestry, and, invoking the career of Justice Clarence Thomas, debate the politics of affirmative action. Responding to the failed attempt to recall Wisconsin Gov. Scott Walker, Ann thinks her formerly blue state is turning redder by the day. Glenn defends and Ann criticizes efforts to promote public employment during this recession."

Here's the whole 40-minute discussion:



IN THE COMMENTS: Chip S. said:

I was surprised that Loury defended Warren so much.

His career exemplifies what's best about affirmative action: Making an extra effort to find people with potential who would otherwise be overlooked.

Hers exemplifies the worst aspects of affirmative action: A cynical numbers game that doesn't benefit anyone whose light is actually hidden under a bushel.

As Glenn tells his own story — growing up poor on the south side of Chicago — he would be someone a law school admissions committee would pick out for multiple factors and not a simple race-balancing, box-checking approach to affirmative action. And unlike Elizabeth Warren and other individuals with a claim to some Native American ancestry, Glenn does not have the power to check and uncheck the box depending on whether or not an advantage is available. He can't be creative about his conception of himself when it comes to race.

"Crack's Top Ten Suggestions For What Meadhouse Can Do To Keep Me Entertained."

The Crack Emcee was really inspired by my comment "Remember, Meade and I need to do some road trips for your entertainment, and it's a big deal to do that customized Sprinter to suit the sensitivities of an old lady professor-blogger."

Note: The "Clarence Thomas" tag is not a mistake.

"Of all the things Walmart is best known for (low prices, litigation, the demise of mom-and-pop stores), an overnight stopping place for RVers is not among them."

It's not? I think it is. That sentence is from a (long!) NYT article about renting an RV and driving all over the western United States.

Somehow litigation is a stronger association with Walmart. Who knew? And I'm a lawyer. I mean, I know Walmart has been sued. (There was that unsuccessful effort to make a class action out of the lack of advancement of female employees.)

Speaking of law, how can you write a huge NYT article about RV vacationing in the U.S. and not mention Clarence Thomas? Here's an article to make up for the gap:

"We've been in dozens of Walmart parking lots across the country," said Mrs. Thomas. "Actually it's one of our favorite things to do if we're not having to plug in and we've got enough electricity ... but you can get a little shopping in, see a part of real America -- it's fun."

When Justice Thomas is recognized, "it sort of puts a damper on things... It's not that there's anything bad... What actually happens is we kind of get mobbed. We had to leave one site that, they got so friendly... they looked forward to seeing us every year that there'd be 20 - 30 people waiting for him to come out of the bus, so we just had to move on."

She says the tough economy isn't going to stop a lot of campers, "Campers are very resilient... if gas goes up, or the cost of camping changes, or if it's difficult to fit it in, they're going to find a way to vacation. There's a whole range of campers -- from tents to pop-ups to fifth wheelers... they're people who love their family, they love the simple life, they love to get away but not spend a whole lot of money ... it's the best of America out here."

Clarence Thomas "said he went to a Cracker Barrel restaurant with three non-lawyer buddies for his 60th birthday."

From an article about Justice Thomas's talk at the University of Kentucky.

The justice also had good words for the community in which he grew up. He compared the rural Georgia area to the setting of the movie The Help.

Despite all of the troubles, he wouldn't trade the neighborhood for anything, he said, adding that there was order and peace there.

"I was treated a lot better in the South than I was ever treated in the North," he said. In his high school, where he was the first, or one of the first, black students, "nobody ever said I was inferior."

Thomas described the Supreme Court as a "wonderful place" that "might be better than we deserve." He said the other justices are "good people" and his friends; he's never heard an unkind word among the nine justices when they discuss legal cases.

Photographing Obama/Clarence Thomas so he appears to have a halo.

I've seen many photographs of Obama that go for a halo image around his head. Photographers/editors seem to really love this kind of thing:



So it caught my eye when the New York Times — in "Groups Blanket Supreme Court on Health Care" — chose a haloed image of Clarence Thomas:



I exclude the possibility that this is an accident. The selection of photographs in the NYT is exquisitely deliberate. I exclude the possibility that the NYT adores Thomas. The halo cannot possibly reflect the religious awe that we sense in the Obama halo pictures. I doubt that is has anything to do with race, though Thomas, like Obama is black. That is, maybe strange notions of spiritualism arise in the minds of white photographers and editors when they gaze at images of black people. Maybe!

I can only come up with 2 explanations I think are plausible:

1. The Clarence Thomas halo is a really messed up halo, constructed of fuzzy dots and sagging at either end. It vaguely calls to mind a UFO. It therefore conveys a negative opinion of the man, especially if you also think of the extremely well-formed haloes that appear around the sainted President's head.

2. The NYT is trying to butter up Clarence Thomas. They'd like to influence him to uphold the health care law. The article begins with an elaborately set-up quote from Thomas, likening Supreme Court decisionmaking to shooting free throws in basketball: You focus on the rim and ignore all the crowd noise.

With three days of arguments scheduled for this week, the nine justices will need the steely nerves of a clutch free-throw shooter to block out all the noise surrounding a case that has generated perhaps the most intense outside lobbying campaign that the court has ever seen.

The article itself is part of that campaign, no?

Proponents of the sweeping 2010 law, working with the White House, have also developed “talking points” to emphasize the potential harm if the law is thrown out, including the reduction in coverage for those with pre-existing conditions and for young adults who wish to remain on their parents’ policies.

Yes, it will take an immense amount of nerve to throw out this uniquely momentous law. I don't think they can exclude all the noise. Maybe Thomas can, but none of the others. Maybe Scalia. But the question is whether the pressure against the law feels greater than the pressure for it. It's momentously valuable/momentously destructive. The noise could cancel itself out, leaving the Justices to decide using a purely legal methodology.

And if they could do that, they would all deserve haloes. But sophisticated legal folk don't think there is any such purity to be found among mortals.

“All that other background noise, I never — I don’t listen to all this stuff,” [Clarence Thomas] said. “I don’t read the papers, I don’t watch the evening news.” If justices let outside pressures distract them, he said, “in my opinion, you have no business in the job.”

Jesus said: "You therefore must be perfect, as your heavenly Father is perfect." And Paul wrote: "All have sinned and fall short of the glory of God."

"Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises?"

Scott Douglas Gerber, commenting on the reaction he got to his book "First Principles: The Jurisprudence of Clarence Thomas."

[H]e received a note from a friend who wrote, “I think it is a very worthwhile venture, but one fraught with potential problems.”

"'What potential problems could there be?’ I asked myself upon reading this," Gerber said. "Has academia come to this? Have academics really become so political that we are now required to write partisan pamphlets rather than scholarly treatises? Note that this does not mean I am supporting Clarence Thomas; it does mean, however, that I am not against him."

By the way, I can't find Gerber's book on Amazon or in the iTunes bookstore. My Amazon search for the title turned up a bunch of mismatches, led by "Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives." Hmmm. [ADDED: The article at the link got the title of the book wrong, and Amazon's search tool isn't good at guessing its way around problems like that. Here's the book, which is called "First Principles," not "Founding Principles." Unfortunately, you can't get it in ebook form.]

Anyway, as the first link above shows, Clarence Thomas marks his 20th year on the Supreme Court this year. Oh, to have been blogging then!

Thomas’ critics strove to mischaracterize his views about the Declaration of Independence during his nomination process in 1991, according to Gerber.

“For example, Harvard Law Professor Lawrence Tribe wrote in a scathing “New York Times” op-ed that Thomas would use the Declaration to turn back the clock to the darkest days of the nation’s history. Quoting Tribe: ‘Most conservatives criticize the judiciary for expanding its powers, creating rights rather than interpreting the constitution. Thomas, judging from his speeches and scholarly writings, seems instead to believe judges should enforce the founders’ natural law philosophy… which he maintains is revealed most completely in the Declaration of Independence. He is the first Supreme Court nominee in 50 years to maintain that natural law should be readily consulted in constitutional interpretation.’

“What critics such as Tribe fail to appreciate was that Thomas was articulating the standard individual rights interpretation of the Declaration, an interpretation shared by Jefferson, Lincoln and Rev. [Martin Luther] King Jr.,” Gerber said. “To secure these rights, the Declaration proclaims, governments are instituted among men.”

Here's that Tribe op-ed in its natural habitat. If only blogging had been around back then, what would we lawprof bloggers have said? It's nice to have Gerber's book — except that it's impossible to get (in the sense that I can't download it into my computer right now. I do have a library!). But the ability to blog these things in real time is something that we now see as an essential check on liberal media. It's frightening in retrospect to think of the one-sided manipulations we simply endured back then.

I'll write a law review article — perhaps one thought — and it might come out in less than a year, if I'm lucky. Oh, but what if the law reviews are looking for "partisan pamphlets"?

Conservatives were boxed in, and blogging opened the box.

"I promised the Almighty God that if he took hate out of my heart I would never hate again... He did and I have not."

Justice Clarence Thomas, in a speech yesterday, describing an experience that occurred "on the morning of April 16, 1970."

How much evidence do you need? Analyzing the Herman Cain accusations.

Next, Glenn introduces the subject of race: What's with conservatives loving a black man? And what's with liberals' eagerness to destroy him? (The splice in the middle of this segment isn't censorship. Our phone connection failed, and we had to restart.)

"Herman Cain Played the Race Card, But Liberals Are the Ones Who Dealt It."

John McWhorter:

Liberals have not only failed to acquit themselves well with their self-righteous deployments of race allegations—they have encouraged conservatives to follow their lead. Conservatives, unsurprisingly, have acquitted themselves equally poorly. The clip of Clarence Thomas making his “high-tech lynching” claim looks worse by the year. The one from last week of Cain on Fox News—when asked whether racism is behind the charges, all he came up with was “I believe the answer is yes, but we do not have any evidence to support it”—now joins it as a quintessential demonstration of flabby reasoning and sociopolitical cynicism.

Read the whole thing.

Politico essay "Cain reaction: Not by the book" should really be titled "Cain, give up before it gets ugly."

"Herman Cain... has already broken every rule in the book on how to deal with a political scandal," says Suzanne Garment (at Politico, where the allegations were first revealed):

After 25 years of post-Watergate scandals, political people have figured out what you do about a skeleton like Cain’s: Enter crisis mode. Gather every witness and piece of paper you can. Have your story straight. Identify the holes in it and shore them up. Then get out in front with the story line—quickly, before the cold turns into pneumonia. Everybody knows this....

But what Garment really wants to talk about is — as she puts it — "what the Cain scandal... says about us." She offers 2 "possibilities." One is that the scandal confirmed what the press already thought of him, that he's got a "substandard... organization," and so the scandal works as "a hard news hook on which to hang a soft judgment." If that's what's going on, we are in the middle of ending Cain's viability as a candidate.

The other possibility is the one people mention, then recoil from as if they’d touched a hot stove: the possibility that we’re watching a Thomas. It’s no wonder they recoil. Twenty years ago, the question of whether Supreme Court nominee Clarence Thomas made unwelcome sexual comments to Anita Hill turned into a piece of political theater that scorched not just the two principals but those who observed them and the confirmation process itself.

Even partisans of then-Judge Thomas asked themselves, if they were honest, about the climate that subjected Hill to such an unremitting attack on her character. Even partisans of Hill asked themselves, if they were honest, about the venom of the attack on a conservative black man.

Yes, we have no idea of how much or how little the particular facts of the Cain and Thomas situations resemble each other. But no one who watched the Hill-Thomas struggle can forget the sheer hatefulness exposed by the controversy, and no one who watches the Cain scandal can avoid the echoes of that memory. All one can hope is that an awareness of the past ugliness will keep us from repeating it.

What is Garment really trying to say? I find her writing a strange combination of tortured and mealy-mouthed. I think she's saying Cain is an inadequate candidate and this scandal provides an opportunity to take him down soundly and efficiently, but she's worried that people will fight for him, and she warning us not to go there. It will be ugly.

I don't know her politics, but I suspect that if she was around 20 years ago, she was one of the many people who thought that Clarence Thomas, when accused of sexual harassment, would accept the shame and quietly remove himself from the national stage. But he stood his ground, the fight took place, and he has held his position on the Court to this day.

Can Garment really think that those of us who respect Clarence Thomas wish he'd spared us that fight by departing on cue? What would have happened next? We'd have learned that opponents can take down a preferred candidate by throwing an accusation against him about something that happened without witnesses other than the accuser and the accused. How many times would that scenario play out before people would rouse themselves from that self-defeating passivity?

Garment doesn't mention Bill Clinton, but there's a man who dragged the country through an unbelievably ugly ordeal to hold onto his power, and his co-partisans supported him on that long march through the mud, even at the cost of selling out all the principle they'd seemed to care so deeply about only a few years before when they tried to take down Clarence Thomas.

High-tech lynching + Herman Cain.

A Google search returns 35,400 results the day after Politico drops its story about 2 female employees who, years ago, were angered and upset by what they said was "sexually suggestive behavior" by Herman Cain.

Let's listen to the original use of the phrase "high-tech lynching." It was just about exactly 20 years ago that Clarence Thomas, nominated to the U.S. Supreme Court by George H. W. Bush, faced the Senate Judiciary Committee, which, under the watch of Senator Joe Biden, heard testimony accusing him of sexual harassment.

"National Merit has never been transparent about, for example, the ethnic diversity of the people who receive National Merit scholarships."

Said William Fitzsimmons, the admissions dean at Harvard, quoted in an article that reports that NYU — like at least 8 other schools — has withdrawn from the National Merit scholarship program, which distributes money based on PSAT scores.

“National Merit has developed a kind of grandeur that is misguided,” said Lawrence Momo, director of college counseling at the private Trinity School... “The mythology that has been created about it in the public imagination is overblown.”

Dropping out of this test-based merit system because of racial/ethic disparities — assuming that's what's going on here — is distinctly different from adopting an affirmative action program to correct for disparities caused by the use of test scores in admissions.

In the Supreme Court case Grutter v. Bollinger, which approved of the University of Michigan Law School's use of race as a "plus factor" in admissions, Justice Clarence Thomas, in dissent, blamed the law school for creating the disparity itself by relying on the standardized test:

[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body... The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test....

Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination....

Ending reliance on a standardized test is exactly the solution Clarence Thomas suggested. It does not classify individuals by race or ethnicity.

"Herman Cain Tells Piers Morgan That He Is Anti-Abortion, Yet Pro-Choice?"

Mediate has that headline, as if it's hard to fathom. But I think most Americans are anti-abortion yet pro-choice. I am.

As I view the clip at the link — and it cuts off just at the point where I'd ask a few more questions — Herman Cain believes abortion should be legal. He can maintain his own opinion that abortion is always wrong and, at the same time, that it is the woman's decision and that it is not the role of government to intervene.

In the clip, he says the same thing about homosexuality. He thinks that it's wrong, and also that it's not the government's role to prevent anyone from choosing to engage in homosexual behavior. Piers Morgan drags him into the question whether homosexuality is inborn, and the 2 men never draw the distinction between homosexual orientation and homosexual behavior. Whether it's inborn or not, there's a choice about acting out on your desires, and since Cain — I think! — sees that choice as belonging to the individual and not to the government, the science question about the origin of homosexual orientation is irrelevant. I love the idea of freedom of choice, based on a commitment to freedom, as opposed to a concession to the hard facts of biology. (And I remember when people who supported gay rights were enthusiastic about sexual orientation as a choice and got quite angry at a scientist who studied sexual orientation at the biological level.)

What's missing from that Mediaite clip — perhaps not from the interview as a whole — is whether Cain wants to see the Supreme Court overrule the cases that find constitutional rights to choose abortion and to choose to engage in homosexual behavior. You can't tell from the statement in the clip that he thinks there are rights that preclude legislation. Cain might be saying that he wouldn't sign legislation depriving the individual of those choices, but that his disapproval of that legislation doesn't mean that there is a constitutional right — which is what his favorite Supreme Court justice says about such things.

[The law criminalizing homosexual behavior] “is … uncommonly silly.” Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.